UNENUMERATED RIGHTS AND ROE V. WADE.

• Author: Root, Damon
• Position: LAW

A LEAKED DRAFT of a majority opinion published in May indicated that the Supreme Court would soon overturn two key precedents securing a woman's constitutional right to terminate a pregnancy. Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization says Roe v. Wade, the 1973 decision that first established a right to abortion, was "egregiously wrong from the start." He adds that Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding," had "perpetuated its errors."

Noting that "the Constitution makes no reference to abortion," Alito argues that "no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely--the Due Process Clause of the Fourteenth Amendment." Although "that provision has been held to guarantee some rights that are not mentioned in the Constitution," he says, "any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito concludes that "the right to an abortion does not fall within this category."

That analysis falls short in at least two crucial ways.

First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is "deeply rooted" in American history and tradition.

Second, Alito's draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. "When the United States was founded and for many subsequent decades, Americans relied on the English common law," explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. "The common law did not regulate abortion in early...