Obviously, one of the most controversial decisions that you’ve been involved in so far at the court is the Dobbs decision that overruled Roe v. Wade. The Constitution obviously doesn’t say anything about abortion. There’s no abortion provision in the Bill of Rights or anywhere else, right? Right. Does that just mean from an originalist perspective: Case closed, abortion is left to Congress or left to the states, and that’s all that needs to be said? No, because the Dobbs decision was interpreting the 14th Amendment’s due process clause — which says that no person shall be deprived of life, liberty or property without due process of law — because, to the extent one might argue that there is a right to an abortion in the Constitution, it’s located in that clause. That’s where Roe found it. “No person shall be deprived of liberty” would be the relevant one there. And so the court’s — the line of cases is known as substantive due process — and so there are some things that the legislature can’t take away, be it Congress — and the 14th Amendment applies specifically to the states. Liberties, to be clear, that are not themselves enumerated. That are not constitutional enumerated. But yes, that word liberty does protect some content above and beyond things that are expressly stated in the Constitution. But you see the problem. I might think a lot of things are in liberty that you may not think are in liberty that one would disagree with. And there’s a lot of risk. And this has been a very contested area of constitutional law for a long time. There’s a lot of risk and making judges the final arbiters of exactly what the content of that word liberty is. So in an effort to reconcile this idea that if there are some things that are so deeply entrenched and so fundamentally a part of American society, that they go without saying, we don’t need to enumerate them, we don’t need to say them out loud, then those are the kinds of things where it’s just widely understood, so widely understood that we don’t have to put it in writing. We don’t have to commit it to paper, commit it to parchment, so to speak. Then those kinds of things inhere in that word, liberty, and they have the status of constitutional guarantee. So what would be some examples of those kind of liberties apart from the abortion question? Marriage, the right to direct the upbringing of one’s children — these are all ones I’m pulling from precedent — the right to use contraception. The court has said that the ones that are not included are the right to assisted suicide, the right to abortion. I think those are probably the two most prominent ones that have been held not on the list. And you were one of the people who held that the right to abortion was not on the list. Yes.
