The Light the Court's Originalist Majority Must See

In the annals of the Supreme Court, in the abrasions and interplay among the justices, it was a fleeting moment, but with a flash that illuminated the landscape. And in a flash, it was gone, not widely noted, nor long remembered. But it bore a story that lights anew in our day. It was when Justice Byron White, one of the two dissenters in Roe v Wade, startled or jarred Justice John Paul Stevens, though it may not have taken much to unsettle Justice Stevens. The case was Thornburg v. American College of Obstetricians and Gynecologists (1986); the Court was striking down a regimen of “informed consent” on abortion enacted in Pennsylvania. Justice Blackmun thought this was a shifty way of discouraging women from having abortions by asking them this invidious question of whether knew what they were doing.

Justice White startled Stevens by saying that he, too, could accept a “right to abortion” in some sense. For after all, back with Roe and the companion case, Doe v. Bolton, Justice Rehnquist had said in dissent that, of course, no one would deny the right of a woman to have an abortion when her life would be in danger. White was saying now, in the same way, that he would accept abortions in those instances in which abortion may be “justified.” He further startled Stevens by suggesting that he could accept the holding in Roe v Wade if it were put on the same plane as the chain of those other, newly proclaimed “rights” and precedents that were taken to lead to Roe v. Wade.  And so “the right to marry,” in Loving v. Virginia, never meant that a freedom to marry may not be subject to restrictions at many points—as in establishing an age of maturity, confining marriage to only two human beings of different sexes, or barring fathers from marrying their daughters. If the right to abortion in Roe v Wade were put on that plane, we would understand that the freedom of abortion may also be restricted at many points for many plausible reasons. Even many people who call themselves pro-choice do not think that abortions should be available because it would help a woman finish school and get on with her career. And there is ample reason to suppose that they would follow the inclinations of most people in the country to bar abortions later in pregnancy. 

However, Stevens seemed to think that White’s move was a ploy that was not offered truly in candor. For White was arguing that the “liberty interest” in not bearing a child made a few days after conception was somehow less fundamental than a comparable decision made before conception. As White understood, a new human being had come into existence with conception, and Justice Stevens was at a loss to see just why that should matter. He couldn’t take seriously what White was saying when he remarked:

The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. …. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability … Accordingly, the State's interest, if compelling after viability, is equally compelling before viability. 

And that would become a replica of the line that Justice Alito would later set down in his opinion in the Dobbs case, overruling Roe v. Wade. Alito brought back White’s words: “If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’ … why isn’t that interest ‘equally compelling before viability’?” It was, after all, the same entity, the same small human being, at different stages of its growth and development.

Stevens seemed sure that White’s position was utterly contrived and bogus as White claimed that he could truly accept a constitutional right to abortion. Quite evidently, Stevens did not see that White was offering an alternative path. The Court could work on the premise that there is indeed a right to abortion when the pregnant woman’s life was in danger, but it could still consider the many reasons that the law could come to a judgment as to why, in the case at hand, there would be no justification for destroying an innocent human life. 

And so, in our own time, the Court could sustain the ban on partial-birth abortions, and later the ban on abortions at 15 weeks. It could go on to sustain the barring of abortion at six weeks when the heartbeat of the fetus could be recorded more easily. At each step, the public would be invited to ponder and absorb the notion that it was indeed reasonable and justified to bar abortion in these cases. After a long line of cases, Roe could be left as a shell, with the substance more and more removed.  It would take just a short step finally to put it away. This used to be called The Art of Overruling. And with abortion, it involved the Court acting again as Republican Schoolmaster.

For 50 years, the Court had been teaching the profound moral rightness of abortion, and now, in the Dobbs decision, a conservative Court was throwing the matter into the political arena, with the culture tilted strongly against the pro-life side. In contrast with affirming the protection of human life at every incremental step, the Court made no effort to start teaching anew, to slowly put a different ethic into place. The lawyers from Texas in Roe v. Wade had drawn on the most updated findings in Embryology to put before the Court that this nascent life in the womb had never been anything but a human life from its very first moments, and not merely a part of its mother’s body. But now, a conservative majority in 2022 would not even put in place that anchoring point of recognizing the human standing of that life in the womb.

And so we found ourselves with this deep split in the conservative legal movement when the question is raised: What was that wrong in Roe v. Wade?  Some of us think that the problem was that the Court licensed the killing of innocent, unborn children on a massive scale. But some of our friends think that the deeper wrong was that the Court had stepped into the wrong lane and invented a new right not contained in the text of the Constitution. For fifty years, buses brought people from all parts of the country to Washington in the middle of January to the worst weather that Washington can serve up. Those people were there, in the March for Life, because they thought they were protesting the dismembering or poisoning unborn babies in the womb. They were not there because they thought a grave mistake had been made in the separation of powers, with judges overstepping their bounds. But for conservative jurisprudence, the focus was on killing that great White Whale, overruling Roe v Wade. Abortions would continue in massive volume in the Blue States, and conservative jurisprudence will say that is regrettable, but after all, “overturning Roe is all we ever sought, and all we ever promised to do.”

In this respect the telling line that will ever linger from the Dobbs case is that line of Justice Kavanaugh’s: “many pro-life advocates forcefully argue that a fetus is a human life”—forcefully argue as though there has been no long-settled, empirical truth on this matter, found in all of the textbooks of embryology. Kavanaugh seemed to be following the thought of Justice Scalia in that pivotal case of Planned Parenthood v. Casey that: “the whole argument of abortion” [is whether that offspring in the womb is a human life] . . . There is of course no way to determine that as a legal matter; it is in fact a value judgment.” Whether the unborn child in the womb would be regarded as a human being would depend on how much anyone found “value” in regarding the child in that way. This becomes the telling question now: Just what constrains some conservative judges from recognizing certain objective and inescapable truths, quite central to the case at hand, because the framers did not think it was necessary to put those truths into the Constitution? As in the difference, say, between males and females. Or the notion of “parental rights” in governing their own children. Whoever thought there would be a need to set these things in the Constitution?

But we have right now, before the Supreme Court, a case that offers a chance for high clarity on these matters, a case testing the claims of transgenderism. If Dobbs has come to mark for us a “path foregone,” the Skrmetti case from Tennessee offers the possibility for that next step, which might open anew that rival path. The legislature barred transgendered surgeries performed on children, even against the judgment of parents who believed they were seeking “gender affirming care.” The legislature was reportedly moved by a concern for the “physical and emotional harm” of minors, with notions of “gender dysphoria” leading to procedures leaving children “irreversibly sterile,” with “increased risk of disease and illness.”

My colleague Gerard Bradley noted in his recent brief on a related case that these transgendered surgeries have “never succeeded in providing any patient with the sex organs or the reproductive capacity of a member of the opposite sex.” Doing that is simply impossible: no man who ‘transitions’ to female ever actually does so …  These operations nonetheless invariably succeed in making anyone who undergoes them permanently sterile.” The differences that mark off males and females “inhabit every one of the human body’s trillions of nucleated cells. …Sex is in this most profound way indelibly imprinted upon every part of our bodies. Sex is therefore immutable.”

That point has now been picked up dramatically in one of President Trump’s first Executive Orders on the day of the Inauguration: on rejecting “Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The accent was forcibly placed on fixed, objective truths: The Order would overturn the move to “[replace] the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.” The policy of the United States would recognize “two sexes, male and female,” as differences that were “immutable,” “not changeable and are grounded in fundamental and incontrovertible reality.”

When the Skrmetti case came before the federal court of appeals in the 6^th Circuit, Judge Jeffrey Sutton wrote for the Court to sustain the law and bar these surgeries for young people. And it fell to him to explain why the law was justified in removing from the hands of parents the authority to order these life-altering surgeries for their children. But instead of appealing to the deep, objective truths that underlay the legislation in Tennessee, Jeff Sutton, offered an echo of his mentor Justice Scalia:

[T]he question [is] whether the people of this country ever agreed to remove debates of this sort—about the use of new drug treatments on minors—from the conventional place for dealing with new norms, new drugs, and new technologies: the democratic process [and the votes of legislatures]. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.

But what was that medical debate about? Surely not the question of whether males could be turned into females, or females into males by artful surgery. Why is there a need, then, to shy away from the most compelling account of why the law in Tennessee was justified? Why the need to preserve this as a question of the legislature pronouncing on a medical procedure that had been rendered “controversial” only because of the ideological drive of people, swollen with high theory, to seek a life of sexuality liberated from the restraints of nature?

Judge Sutton might have been inclined to be more cautious because he had come to regard these claims to parental rights, as his mentor Justice Scalia had seen them, as having the touch of the constitutionally dubious from the beginning as a species of “substantive due process.” What drew the dubiety of Justice Scalia years ago was that these primary rights of parents were mentioned nowhere in the text of the Constitution. They were drawn out by judges, reasoning through the Due Process Clause, to explain what may be wrong with the move to deny these kinds of rights to parents. But of course, “parental rights” make sense only in a moral framework, and in that framework, there comes the recognition that some parents may neglect and abuse their children, rent them for pornography—or mistakenly order up medical procedures that would be harmful to their children

Judge Sutton’s caution has become familiar, and it may always be becoming in a judge. But we must ask: Is this the best we could do—an opinion that could stand as a concurring companion in that infamous case of Buck v. Bell (1927)? That’s the case in which Justice Holmes so famously said that “three generations of imbeciles are enough.” Based on the flimsiest record, he was willing to sustain a policy of compulsory sterilization in Virginia for Carrie Buck, a woman who was judged by attendants around her to be mentally slow or disabled. Few decisions of the Court have been as reviled in our own time. Yet it was hailed as a gold standard in jurisprudence by some of the leading professors and intellectuals of the day.   And so the opinion of the Sixth Circuit in Skrmetti could serve aptly enough without strain as a concurring opinion: After all, it was recognized that this matter of compulsory eugenic sterilization has been controversial; but there are people with medical credentials affirming the soundness of these procedures; there are professors and public intellectuals who have made the earnest case for the public interest in shaping a population freed of these deficits in intellect. And the law has been enacted by educated, thoughtful people serving in a legislature. 

It all fits so easily, and it is all the more intriguing because the conservatives find themselves in a daze when suddenly faced with the question of what clause in the Constitution they could use now in overruling Buck v Bell and that law in Virginia. Conservative judges who worry about “substantive due process” have a familiar formula by which to gauge the rights that may be plausibly drawn under the Due Process Clause: Does the long tradition and history of our laws contain, say, a right to abortion or same-sex marriage? And in this case, of course, the judges could find no long recognized right to “be free from compulsory eugenic sterilization.” They would have to find themselves mulling over the matter as Chief Justices Stone and Justice Robert Jackson had in that notable case of sterilizing a chicken thief, Skinner v Oklahoma (1942). Stone and Jackson thought it apt to test whether the legislature had a firm enough understanding of genetics to know that chicken-thieving was one of those dispositions to crime that were genetically transmissible. Jackson had serious qualms about conducting “biological experiments at the expense of the dignity and personality and natural powers of a minority,” perhaps those driven to steal chickens or perhaps people who are slower of wit. There was a wrong here that Stone and Jackson could not quite frame as a constitutional matter. But somehow, it just leads us back to some elementary reasoning, among ordinary folk, as to why we cannot take it as a ground for foreclosing or ending human life. Some people are just so much mentally slower than others. Nothing mysterious or esoteric here.

The late Walter Berns was one of the premier writers on conservative jurisprudence, and Berns came to argue 70 years ago that there was nothing other than the Due Process Clause here to protect people like Carrie Buck. Even Justice Holmes, he said, had recognized that “correct procedure may be nothing but an "empty shell" on a which injustice is done. In the end, "procedural due process is a substantive right,” he said, and the judge will need to probe the "substance of the law” involved.

But the matter is set up now for the Skrmetti case. And it’s the issue that divides the minds of conservative judges. Should they make the decisive move to settle the case by recognizing that inescapable, objective truth that fully explains and justifies the law in Tennessee: that sex is immutable, that the surgeries in transgenderism, disfiguring the lives of so many people, are grounded in an unyielding falsehood?  Or should they fall back on that willingness, deftly and stylishly, to steer around that central point in the case? Once again, they could make the gesture of leaving that judgment to people in elective office—as though explaining the deep principles of right and wrong had nothing to do with the “job description” of judges.

That brings us back to the Dobbs case. Justice Alito noted the contention of some writers that the fetus should not be entitled to legal protection until it has attributes such as “sentience, self-awareness, the ability to reason, or some combination thereof.”  But with that reasoning, as he said, “it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as ‘persons.’”  Alito fell in here with a body of reasoning that has sought to show, quite apart from religious faith, that there is no principled ground for ruling out the child in the womb as a human being that would not apply to many people walking around well outside the womb

Gerard Bradley has argued that this passage, at the core, provides the decisive ground of the judgment in Dobbs. It rings independently, regardless of what other noise or clutter may abound in the assembled opinions. Bradley is persuaded that, on this ground alone, Alito has removed the ground of defense for any of the laws in the Blue States, or others that would withhold the protections of the law from those tiny beings in wombs. Alito himself did not take the occasion in Dobbs to draw the dramatic conclusion that springs so clearly from the reasoning he set down. He left that conclusion for others to draw—perhaps members of Congress, drawing on their powers under the Fourteenth Amendment to protect these small human lives when the protections of the law were withdrawn in the Blue States. Or perhaps that step could be taken by a federal judge, who sees what Alito has set down and sees the moment to act in a case challenging one of the widely permissive abortion laws in the Blue states.  But conservative judges have been bred to be cautious. Most of them would probably be reluctant to make such a move unless Alito shows signs of a willingness to make it.

And so we’re reminded again of the Court playing the role of Republican Schoolmaster. No string of decisions by the Court on Civil Rights could accomplish what Congress accomplished in 1964 with the Civil Rights Act: a sweeping act of legislation, applying prospectively, to every inn or restaurant or place of public accommodation in the land that fell within the description of the statute. But it would be hard to account for the resolve finally contained in that Act were it not for the fact that, for the preceding ten years, the Court had been teaching, day in and day out, the wrongness of racial segregation. And by the same measure it would be hard to explain the sweeping moves taken the Trump Administration to root out programs on “diversity” and racial preferences if the Supreme Court had not provided the moral ground in pronouncing the profound wrongness of racial preferences in the cases of Students for Fair Admission versus Harvard and the University of North Carolina.  

It is hardly a stretch, then, to see the same thing as practicable here on the matter of abortion if the Court is willing to make, even now, a beginning. And the Skrmetti case, distant from abortion, provides just the right moment. The conservative majority, in my reckoning, is likely to sustain the law in Tennessee, meant to restrain those life-altering surgeries performed on children. It could do that simply by taking “the low door under the wall”: it could decide to leave the matter to the judgment of legislators, trying to make a tough call, to protect children even when the parents would give the children what they seem to crave. Or the justices could take the critical move and sustain the legislators by appealing to that inescapable, objective truth that alone explains the compelling rightness of what the legislators had done. The Trump Administration has already imparted momentum with its Executive Orders and set out a strong, coherent position on transgenderism. Would this not be the moment for the Court to recognize the same “immutable truths” and firm up the moral and constitutional ground for these orders?

With transgenderism the Court would have the public massively on its side, not exactly what it would have in any case on abortion. But a move of this kind could not help but be noticed by conservative lawyers and judges spread throughout the country. And what is done in this move, to the deep ground of judgment, may well stir an attentive judge at another time, in a court lower or higher, to take that first step leading out from Justice Alito’s opinion in Dobbs. And that path hinted by Justice White, and once foregone, will now come into plainer sight.

Hadley Arkes is the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding, and the Ney Professor Emeritus of Jurisprudence at Amherst College. He is the author of many books, including, most recently, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Regnery 2023).