As always, you can find the Dobbs v. Jackson decision here.

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Sentence 2 of 3

The next sentence is a single claim that merits close examination:

“We have held that the ‘established method of substantive-due-process analysis’ requires that an unenumerated right be ‘“deeply rooted in this Nation’s history and tradition”’ before it can be recognized as a component of the ‘liberty’ protected in the Due Process Clause. Glucksberg, 521 U.S., at 721; cf. Timbs, 586 U.S., at ___ (slip op., at 7).

The first source cited here is Glucksberg, and it’s a passage that’s appeared before in this decision. Even though the specific words appear on page 721, the relevant material begins on page 720, so I’ll include the whole thing:

“Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’ Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra, at 277278. Our Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking,’ Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment ‘forbids the government to infringe … “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’ 507 U. S., at 302.

Here are the relevant bits with the citations stripped out:

• “First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ [. . .] and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’
• “Our Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking,’ Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment ‘forbids the government to infringe … “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’

A quick reading of the first selection reveals a significant difference in one word. Dobbs uses the word “requires” where Glucksberg uses the phrase “specially protects.” Does “specially protect” rise to the level of “required”? I don’t think it does. If Glucksberg had used the word “only” or “exclusively,” then we’d have a match, but “specially” doesn’t do any work to disqualify anything that isn’t “deeply rooted in this Nation’s history and tradition,” It doesn’t address those situations at all. If this were the whole story, the claim would be false in my estimation. But this isn’t it. There’s more in Glucksberg, and there’s Timbs to consider, and both of those cases cite other cases.

The second portion notes “guideposts,” which doesn’t suggest to me explicit exclusion of anything.

Another paragraph in Glucksberg, on page722, contains more relevant language:

“In our view, however, the development of this Court’s substantive-due-process jurisprudence, described briefly supra, at 719-720, has been a process whereby the outlines of the “liberty” specially protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement-that a challenged state action implicate a fundamental right-before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case.

This is less direct, but it doesn’t seem to me that “refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition” excludes circumstances that aren’t “deeply rooted in our legal tradition.” Same point, different iteration. I’ll move on to Timbs.

I’m not sure what to make of the Timbs citation. There’s only one passage here that suggests to me that anyone argues for the exclusion of circumstances that aren’t “deeply rooted in our legal tradition,” and it’s this one:

“The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted.

“In Austin v. United States, 509 U.S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive.

The problem I’m having here is that the Court rejects this line of argument—not because the circumstances aren’t “deeply rooted,” but because they are.

I could be misreading this or lack the specialized knowledge to make better sense of it. In either case, this claim in Dobbs is, at the very least, undetermined:

• “We have held that the ‘established method of substantive-due-process analysis’ requires that an unenumerated right be ‘“deeply rooted in this Nation’s history and tradition”’ before it can be recognized as a component of the ‘liberty’ protected in the Due Process Clause.”