Today, Explained - Is abortion in the Constitution?

Episode Date: May 13, 2022

Not explicitly, no. But neither is the right to travel from New York to New Jersey. NYU law professor Kenji Yoshino explains our unenumerated rights. This episode was produced by Victoria Chamberlin, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Paul Mounsey, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

We're still coming to terms with that Supreme Court leak from last week in the United States. The country is still trying to wrap its head around what the end of Roe v. Wade might mean. And that's why we asked you to call in and leave a message with your questions about Justice Alito's leaked opinion. Hello, my name is Levi. I am from the state of Utah. A good many messages were left. I listened to all of them. On Today Explained, I'd like to have unenumerated rights explored more. Unenumerated rights, the ones we have that aren't explicitly spelled out in the Constitution. Because in Justice Alito's opinion, he talked

about tradition and heritage of the Constitution. Unenumerated rights, like the right to an abortion. So I think exploring the tradition and heritage side of the Constitution versus enumerated rights could be interesting. All righty, thank you. Thank you, Levi. Bet MGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas.

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charge bet mgm operates pursuant to an operating agreement with i gaming ontario All right, everyone, welcome to Con Law 101 at Today Explained. I'm your TA, Sean Ramos. A reminder that office hours are canceled this week in light of the new Kendrick Lamar album, maybe next week. Professor Kenji Yoshino is getting settled. As you know, he's the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. And today's lecture is all about those rights you don't see explicitly listed out in the Constitution, the unenumerated rights. What the hey are they, Professor? This is a head-scratcher for many people who come into law school, which is the idea that there are some rights

in the Constitution that are nowhere in the text of the Constitution. So the reason that's puzzling, right, is that we think that the whole kind of project of writing down a Constitution is to make sure that things are written down. So why on earth would there be a lot of rights that are just floating without any textual

referent that nonetheless have the stature of a constitutional right? It may shock people that the right to vote, the right to marry, and the right to travel across state lines are all unenumerated rights. None of those rights are textually enumerated in the Constitution. So you hear a lot of arguments these days, like, you know, there's no right to an abortion in the Constitution. Professor, you're telling us there's technically no right to go from New York to New Jersey in the Constitution either. Exactly. But nonetheless, the Supreme Court has repeatedly said that right does exist, the right to travel. Say, New York said you're not allowed to travel, period, to Connecticut. That would create an uproar that would go to the courts and it would be struck down in a hot second.

So the kind of thing about unenumerated rights is that they exist. There's this grand bargain of the original Constitution in 1789. But the notion is a lot of people said, we're not going to ratify this unless there's a Bill of Rights. So the Bill of Rights gets ratified a couple of years later. But even the Bill of Rights feels really incomplete to a lot of people. And so they shove in this Ninth Amendment that says simply because we've written down certain rights doesn't mean that this is an exhaustive list. And the Ninth Amendment takes any doubt away from what people believe because the framers really clearly stated that the enumeration in

the Constitution of particular rights was not meant to be exhaustive. It was simply meant to be exemplary. So I love this paradox, and I always talk to my con law students about this, which is that there is a textual reference to unenumerated rights. The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. In other words, there's an enumerated provision in the Constitution that talks about unenumerated rights and guarantees them, right? They preserve the right of the thing they didn't preserve the right for. Exactly. And that was really deliberate and smart. All right, let's skip ahead to 1973 and talk about

unenumerated rights as they relate to the decision in Roe v. Wade. If you don't mind me rolling back to 1965, our story really begins there, because that's when the court began to think about the so-called right to privacy. So in 1965, we have a case called Griswold v. Connecticut. This case involves the validity of the Connecticut anti-contraceptive statutes. And what the court said was there isn't a right to privacy anywhere in the Constitution. So right to privacy is an unenumerated right. And also, there is no particular right to use contraception either.

However, if we look at the enumerated rights in the Constitution, so the First Amendment about the right to assembly, the Third Amendment about the right not to have the government quarter troops in your home during peacetime, implicit in all of those rights is some notion of privacy, whether that's a space-place conception of privacy, like you can't invade my home, or even a decisional conception of privacy, like you can't invade my home, or even a decisional conception of privacy, like you can't invade my mind, right, and force me to incriminate myself against my will. Okay. This is the so-called penumbra analysis, where the court says, well, the right to privacy isn't

enumerated, but it's implicit in so many of the other enumerated rights, like the ones that I just mentioned, that we're going to preserve it as having a constitutional value. And the right to privacy includes the right to use contraception. Certainly the Ninth Amendment meant to reserve some rights to the people. And if there's any right that you would think would be reserved to the people and which the government should not interfere with, it would be this right. Yeah. So when we get to 1973, Roe versus Wade is not a bolt from the blue, right? Because the right to contraception has already been protected under the right to privacy.

Under the rights of persons to life, liberty, and the pursuit of happiness, I think in as far as liberty is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy. I don't mean to put you on the spot, Professor, but what does the 14th Amendment explicitly say? How good's your memory on this kind of stuff? It's pretty good, I hope. So, the 14th Amendment, which was one of the Reconstruction Amendments passed after the Civil War, says, No state shall deny to any person within its jurisdiction the equal protection of the laws, nor deprive them of life, liberty, or property without due process of law. So there are other provisions, but in pertinent part, that liberty

piece of it is the portion that says you can't deny anyone of life, liberty, or property without due process of law. So how do we get from this very abstract liberty to sort of cash it out to more kind of retail level specific rights like the right to contraception or the right to abortion, right? So that's why I think most of us prefer to think of these as unenumerated rights. They're at least unenumerated at that level of specificity and some would say they're not enumerated in the Constitution at all. Unenumerated in the sense that the word abortion doesn't appear in the Constitution. Exactly.

So you could say, oh, well, the word liberty is in the Constitution, the word abortion is subsumed within that, but that's too much of a leap for me, at least. I would prefer to call them unenumerated rights. Now, everyone knows what follows is decades of backlash, but let's home in on Alito's draft opinion striking down Roe v. Wade. What's his beef with abortion as an unenumerated right?

So Alito is not saying there's no such thing as unenumerated rights in the Constitution. If it's not written down, you don't have it, which is sometimes what you hear people who are less well-versed in constitutional law say. He's not saying that. What he's saying is that this particular right, the right to have an abortion, is not one of the unenumerated rights that deserves protection. So that drives us, Sean, to the million-dollar question, which is, how on earth do we distinguish between the unenumerated rights that are in and the unenumerated rights that are out. And this is what this entire debate that has been opened up by this leaked draft opinion is about. Because

Alito's methodology goes back to a 1997 case called Washington v. Glucksberg. And in Washington v. Glucksberg, the Supreme Court says that the way in which we find unenumerated rights and recognize them is to make sure that they are, and here I'm quoting, quote, deeply rooted in this nation's history and traditions and implicit in the concept of ordered liberty. We have also insisted that the fundamental right at issue in a particular due process case be framed rather precisely. So the notion is we will guarantee an unenumerated right if and only if we can find a long historical provenance for that right. And I guess by long historical provenance, we're talking more than, what, the 50 years since Roe v. Wade? Exactly. It's not specified, but it sounds like, you know, centuries and centuries, right?

Because, you know, Alito's going all the way back to the common law in England, right? Much less the founding of this country. Why is Justice Alito going back to common law England in whatever it might be, the 16th, 17th century. I think that just suggests to us that what he thinks of when he thinks about this nation's history and traditions is that the span of time and the scale of time that we're thinking about should be measured in centuries and millennia rather than years and decades. We should make a law that would stand the test of time

so that hundreds and hundreds of years from now, they'll look back and say, no need to update this one at all. They nailed it back in 1235. I don't know. You know, I can, like, order a whole restaurant to my house on my telephone from my closet now.

I don't think there's a lot of common law that really, you know, dictates how that should work. Does it feel a little, I don't know, antiquated? Yes, it absolutely does. And your audible and to me visible exasperation here is something that I really want to sort of honor, right? Because I think that that is what many people are feeling when they read this opinion. And we know that there's a better way. In 2015, in the Obergefell opinion, and many people are focused on Obergefell because it legalized the right to same-sex marriage and made that the law of the land. But Obergefell is important for

another reason as well, which is that this 1997 case that I mentioned, Washington versus Glucksburg, that told us to look at the nation's history and traditions in order to discern which unenumerated rights were recognized, gets seriously undermined by this Obergefell case. So the Obergefell case, which is Justice Kennedy writing for a majority of the court, says, look, you know, history is a starting point, but it's not the ending point of this analysis. Are we really supposed to assume that tradition always gets it right? The hope of Obergefell is to say, yeah, history is relevant, right? But we're not going to go back and look at, you know, antiquity, right? Or the common law in order to figure out what rights we have in a 21st century society. Professor, would you say that this idea that unenumerated rights to an abortion does not have, you know, deep roots in American history or tradition,

is that the central idea of Alito's draft opinion? Yes. And this idea could be applied to many other decisions the Supreme Court has made in the past decades? Yes. 110% yes. Same-sex marriage, interracial marriage, you know, contraception. Any of those rights are now fully in play if you're going to say that an unenumerated right to be recognized has to be deeply rooted in this nation's history and traditions. All right, gang, why don't we take a few minutes, stretch your legs, more with Professor Kenji Yoshino here at Today Explained in a few. Thank you. You save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend.

With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, r-a-m-p.com slash explained. Cards issued by Sutton Bank. Member FDIC, terms and conditions apply. All right, today explained. We are going to jump back into it with constitutional law professor Kenji Yoshino. Professor, before we left off, you said 110% yes.

This Alito reading of Roe v. Wade we got in the leaked draft opinion last week suggests that there are other unenumerated rights that could be next. That's exactly right. What else is on the chopping block? So the right to same-sex marriage, which was decided in 2015 in the Obergefell case, because applying Alito's standard, the right to same-sex marriage is not deeply rooted in the nation's history and traditions. I would also look in the LGBT context at same-sex sexual intimacy in Lawrence, which is seen as the Brown versus Board of the Gay Rights Movement, in the race context, at least the liberty right to interracial marriage portion of Loving versus Virginia in 1967 could also be imperiled.

And then finally, just to round this out, moving over to gender and reproductive rights as well, Griswold versus Connecticut in 1965, protected the right to contraception as an unenumerated right, and that could go by the wayside as well. And so this is not beyond the pale. I'm not saying that all of these rights are going to fall. Right. And Alito acknowledges this himself in the draft, right? He says, don't worry, we're not coming for all your other unenumerated rights. But you're saying there is still the possibility if they sort of open up this can of worms. Is that right? Yes. And can I just say at the outset that I really don't like Supreme Court opinions that say like, oh, this is just a ticket good for one day, nothing to see here.

Because the whole point of laying out a principle as a court of law is that it applies to other cases. So I didn't like it when they did it in Bush versus Gore of saying like, this is just a precedent that's limited to its facts. I didn't even like it when they used it to uphold affirmative action the last time saying this holding may be narrowly conscribed to the facts in this case, which are unusual, right? I don't think you get to say that. I think that's for subsequent courts to interpret. I don't think you get to say,

well, here's this principle that I'm articulating, but it's not going to extend very far. That's especially true when you get a situation like this, where they're laying out a test, and they're saying, to be an unenumerated right that's recognized by this court, you have to be deeply rooted in the nation's history and traditions. So all four of those cases, I'm not saying they're all on the chopping block necessarily, but they're all freshly imperiled. And we should not buy for a second, if it indeed

becomes published as a law of the land, that this is not going to have implications for all those other contexts as well. And the Supreme Court of the United States has a very specific name for this phenomenon of respecting its precedents. You hear it in confirmation hearings, you read it in opinions, it's called stare decisis. If this opens up this opportunity to overturn presidents on whims, is it a direct violation of this sacred stare decisis? So the even-handed part of me wants to say, like unenumerated rights, it's not like you're totally for unenumerated rights or against unenumerated rights. There's a middle ground that we're trying to figure out how to manage. With stare decisis, it's not like we can say every single thing that the court has uttered is precedent forever. There have to be standards in which you can overrule precedents. There are some famously very bad

decisions that everyone agrees were very bad. Exactly. So, you know, for example, Alito makes a lot of hay out of saying, well, look, you know, we had to overturn Dred Scott as a precedent with a constitutional amendment. That was the opinion that said black individuals could not be citizens. Also, Plessy versus Ferguson. That's the 1896 case that was overturned by Brown versus Board of Education. So Plessy upheld the doctrine of separate but equal as being consistent with the Constitution. The question with stare decisis is not, you know, do you always, you know, retain precedent, or do you just ignore precedent and rule whatever you want? It's always going to be somewhere in

between. But this Casey decision that doubled down on Roe in 1992, Casey laid out a very careful set of factors to weigh in thinking about whether or not precedent should be followed. And Casey laid out a very careful set of factors to weigh in thinking about whether or not precedent should be followed. And it laid out essentially four elements. And the first of those was whether or not the rule of the prior decision had proven to be simply unworkable, like lower courts couldn't make sense of it. Second, the question was whether or not there had been reliance interest on the precedent. And there, the court said, a whole generation has come to rely on Roe and ordered their social and economic lives around it. So we can't sweep the rug out from under all those individuals who have grown up thinking

that they have this basic right to their bodily autonomy and integrity. And then the third and the fourth, has there been a change in doctrine or has there been a change in fact? In other words, have subsequent cases chipped away at the original decision? And fourth, have there been facts that have come to light since the original decision that make us see the case totally differently? Is part of the problem here that we've been too reliant on the Supreme Court to usher in progress in the United States instead of legislating it? The right to contraception, the right to interracial marriage, the right to same- that would most avail themselves of those rights, whether that's the LGBT community, whether that's women, whether that's racial minorities,

were not part of the framing of the Constitution. So we have, you know, what I often call status based exclusions from we the people that existed at our founding and for many centuries thereafter. And so if you or I would not have been participants, right, in the framing of the Constitution, not just because, you know, all those people are dead, but because they wouldn't have included the social groups to which we belong, then how legitimate is a document that purports to bind all of us? You know, people almost laugh when someone says like, oh, there should be a constitutional amendment about that, because it almost seems like they've entered the domain of utopian politics, because it seems so implausible

that the Constitution would be amended. It's only been amended 27 times over the course of our nation's history, and 10 of those obviously were in that big installment of the Bill of Rights two years after the framing of the Constitution. So that's not very many times. And that means that the document is unable to update itself so that if you take a historically bound understanding of the document, as originalism often does, or these stingy understandings of the stick are going to be that component of today's we, the people, who were unrepresented at the time of the founding. So it just seems a little bit too convenient to say, lots of unenumerated rights, but not your unenumerated rights, and lots of stare decisis, but not this particular form of stare decisis. And it seems completely driven by a particular result to think about the Constitution as a document that only protects certain kinds of people. And those certain kinds of people were the people who were around when we the people, right, in 1789 or during the Reconstruction were there, rather than the much more diverse, heterogeneous society that we are in 2022. Professor, what does it say about the state of our democracy in the United States if a decision

like this drops in the coming weeks? Five unelected conservative justices, several of whom were nominated by presidents who lost the popular vote, overturning 50 years of reproductive rights tradition in this country, overturning a right most Americans believe they should have. kind of core tenets of constitutional law is what's known as the counter-majoritarian difficulty. You have sort of five lawyers on a committee in Washington, D.C. deciding the fate of all of us who live in the United States. You know, why is it those individuals get to hand down these decisions that bind all of us? One of the justifications for the counter-majoritarian difficulty is that you have this majority at the top of society, the Supreme Court, handing down opinions that protect minorities at the bottom of society. I think one of the things that you're pointing out here is that this is not that. This is a very tiny minority at the top of society protecting the

interests of other individuals who have historically been in power. And so it's not actually a minority at the top of society protecting the underdog. This is a minority at the top of the society protecting a very sedimented status quo. All of us, sadly, are going to need to prepare ourselves for a court that is going to be ruling very much against minorities, right? Against a kind of pluralization of what it means to be part of We the People. And so in that sense, this court is more conservative than any court we've had since the early 20th century. This land is your land, and this land is my land. From California to the New York Island, from the Redwood Forest to the Gulf Stream waters, this land was made for you and me As I went a-walking

that ribbon of highway and I saw above me that in the sky Professor Kenji Yoshino, Constitutional Law at New York University's School of Law. Victoria Chamberlain

did the assignment. Matthew Collette, Laura Bullard, and Paul Mounsey checked her work. I'm Sean Ramos for M-ClassDismissed.