Surprising no one in the wake of the leaked draft opinion, the Supreme Court today overturned Roe v. Wade and Planned Parenthood v. Casey and held that there is no constitutional right to elective abortion access. Some will celebrate that decision for returning one of the most contentious policy issues in American life to the legislative branch, while others will denounce it as a repudiation of personal autonomy and a further example of the judiciary’s historic failure to afford coequal legal status to women.

Cato did not file an amicus brief in Dobbs v. Jackson Women’s Health Organization because we believed—and continue to believe—that reasonable libertarians can disagree about whether the Constitution, properly understood, has anything to say about abortion and if so, what. In this post, we will explain why libertarian ideology does not supply a clear answer to the moral question of abortion, why the constitutional question is not as straightforward as absolutists on either side contend, and what lessons we can draw from the majority opinion in Dobbs.

I. Libertarianism tolerates a wide range of views on the policy question of abortion access

Libertarianism, in the most general sense, is the political philosophy that holds individual liberty as the central political value. It is a broad concept without rigid boundaries, but those who embrace its tenets hold that people should be presumptively free to make choices about their own life and that what people do with their bodies and their property is up to them, provided only they do not cause harm to non-consenting parties. Thus, any claim of authority to infringe upon this domain of individual liberty—whether made by a government or a private party—necessarily requires strong justification.

From this perspective, it is hardly surprising that state regulation of abortion access is a grave concern for many libertarians. If bodily autonomy entails the right to decide, for example, what food to eat, whether to use drugs, and what medical treatments to accept or refuse, then it surely entails the right to reproductive liberty as well. There are few decisions more intimately personal than deciding whether to have a child, and few developments with greater consequence for one’s life and body than pregnancy and childbirth.

Moreover, there is ample reason to doubt the efficacy of state attempts to control an activity that a huge number of people are determined to engage in regardless. Alcohol and drug prohibition appear to do little to discourage most people from consuming drugs and alcohol; but they certainly do set the stage for black markets that empower criminal organizations, reduce safety for consumers, and entangle otherwise law-abiding citizens in the many pathologies of the criminal-justice system. Abortion prohibition, whatever its merits in principle, will certainly entail some or all of these problems and will, like all prohibitory policies, inevitably raise the question, “How much violence are we prepared to employ against people who disagree with this policy in order to enforce it?”

For these and other reasons, a clear majority of self-professed libertarians describe themselves as “pro-choice.” But of course, abortion access is, at least debatably, not solely a question of personal bodily autonomy. The heart of the “pro-life” position is that unborn children—at some point during pregnancy, and perhaps as early as conception—become distinct rights-bearing entities entitled to moral consideration for their own sake. To those who start with such premises, “my body, my choice” is no more persuasive an argument than “my property, my choice” would have been to an abolitionist. Both slogans beg the relevant question, because whether it is just the pregnant woman’s body (or just the slaveowner’s property) is the precise issue under debate.

To be sure, there are many sensible arguments for holding that fetuses are not entitled to the same quasi-deontological moral consideration that other members of a polity are entitled to—for example, that they lack the sort of reflective self-awareness that gives someone an independent sense of their own self and their future. Or that, at early stages of pregnancy, they lack the capacity to feel pain. Or that even granting that a fetus has a right to life, that doesn’t give it a right over the woman’s body.

The point of this particular discussion isn’t to resolve these debates. Rather, it’s to illustrate that these are questions of moral philosophy. And libertarianism is, fundamentally, a political philosophy that can arise out of many different ethical traditions (consequentialism, natural rights, common-sense moral intuitions, etc.). Thus, even if libertarians were in complete accord on the state’s practical obligation to rights-bearing entities, they might still disagree on what makes something a rights-bearing entity in the first place. What of living humans with brain damage that prevents them from achieving conscious awareness? Or the higher animals outside our political community, which nevertheless demonstrate signs of true self-awareness? Or animals that, even if lacking a higher sort of consciousness, nevertheless have the capacity to suffer? Or, more speculatively, computer-emulated human brains?

There is a not an obvious “libertarian position” on any of these questions because libertarianism does not purport to be a complete theory of personhood and moral obligations. Thus, it is hardly surprising that libertarians disagree on abortion, not because of fundamental differences in (or compromises with) their general political philosophy, but because of different views on what sort of moral consideration is due to fetal life.

Of course, the fact that libertarians can reasonably disagree on this issue doesn’t mean individual libertarians should refuse to take a position, and the fact that there are reasonable arguments on both sides doesn’t mean that the issue is incapable of resolution. But we do not think Cato, as an institution, should attempt to offer a definitive answer to a moral question dividing libertarians generally, as well as Cato scholars and staff specifically.

II. Libertarian legal theory and the constitutional status of abortion

Granting that libertarians might have different views about abortion rights as a policy matter, is there nevertheless a clearly correct position for libertarians to take regarding the constitutional status of abortion? To be sure, there is nothing inconsistent with a libertarian supporting abortion rights as a policy matter but opposing the Court’s abortion jurisprudence as a legal matter. Indeed, many libertarians in fact hold that precise view. But we believe the constitutional question is also one about which reasonable libertarians can disagree and that aspects of it may well be as difficult as the intractable disagreements among leading lawyers, judges, and scholars suggest that it is—especially given that courts had recognized a constitutional right to abortion access for half a century.

Most libertarians start with a shared set of beliefs about determining what rights the Constitution does and does not protect. First, human beings possess certain “unalienable” natural rights that are neither conferred by nor dependent upon any legal charter, including the Constitution. Second, the U.S. Constitution neither lists nor purports to list all of the distinct legally enforceable rights that people possess. To the contrary, libertarians recognize and give force to the many provisions of the Constitution that provide explicit textual support for protecting that broader category of liberty often labelled, perhaps misleadingly, “unenumerated rights”—most obviously, the Ninth and Tenth Amendments and the Fourteenth Amendment’s Privileges or Immunities Clause.

Uncontroversial examples of so-called “unenumerated rights” include the freedom to travel around the country (nowhere explicitly mentioned in the text of the Constitution but never seriously questioned), the ability to direct the upbringing of one’s children, and the right to defend oneself against violent and unjustified attack. The Supreme Court has also held, in a decision that even most self-professed textualists and originalists appear to accept, that the Constitution protects a right of access to contraception.

Finally, many libertarians believe in what Professor Randy Barnett calls “the presumption of liberty,” which entails that the government bears the burden of explaining and justifying its use of force to constrain people’s freedom—and not merely with respect to the exercise of rights deemed “fundamental” by the Supreme Court, such as freedom of speech or religion.

In short, most libertarians reject the idea that the Constitution only protects a discrete number of specifically identified rights, and instead understand the Constitution to protect a fairly broad—though admittedly finite and difficult to formulate with precision—set of rights, particularly including those with momentous implications for a person’s life, such as where to live, which career to pursue, whether and whom to marry, whether to have children, and how to raise them if so.

What about the historical argument that an originalist interpretation of the Fourteenth Amendment cannot support a right to abortion because, as the Dobbs opinion asserts, “when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy”? This is certainly a more sophisticated argument then the ipse dixit that the Constitution doesn’t use the word “abortion,” and it may indeed be persuasive evidence.

But that history is still not conclusive on the constitutional question—at least not to us—because Cato scholars generally embrace the version of originalism based on original public meaning, not original intent. In other words, originalism is about interpreting words and phrases as they would have been understood at the time of adoption, not about the subjective intent of those who adopted them. And especially with respect to constitutional provisions written at a high level of generality, those approaches may well conflict. After all, the same Congress that adopted the Fourteenth Amendment also segregated public schools, and yet even Robert Bork acknowledged the correctness of Brown v. Board of Education on originalist grounds. As he wrote in The Tempting of America:

Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

It is thus unsurprising that the Fourteenth Amendment, properly understood, would lead to many conclusions unanticipated by its Framers, yet consistent with the original meaning of the broader principles that actually comprise the text they adopted. Cato, for example, filed multiple amicus briefs arguing that the text and original meaning of the Equal Protection Clause protect all people from arbitrary and invidious discrimination, and thus preclude states from limiting marriage to opposite-sex couples.

The point of this discussion isn’t to suggest that the answer to such constitutional questions is straightforward or obvious; rather, it’s to illustrate that sophisticated originalism, at least with respect to those constitutional provisions written at a high level of generality, requires not just interpretation, but construction. In other words, just knowing the semantic meaning of say, the Privileges or Immunities Clause or the Equal Protection Clause isn’t enough to decide individual cases. You also need doctrinal rules that flesh out how to apply these broad principles in specific circumstances.

Of course, even accepting this sophisticated understanding of originalism, there are still many valid grounds to criticize how the Court has constitutionalized abortion rights in particular. Unlike nearly all of the other “unenumerated rights” cases—such as Meyer v. Nebraska (raising and educating children), Griswold v. Connecticut (access to contraception), or Lawrence v. Texas (homosexual sex)—the right to obtain elective abortions involves not just the liberty of the person subject to state regulation, but also, at least arguably, the life and liberty of another person. And this is why the Dobbs opinion described the abortion right as “critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’” Indeed, one of the most powerful objections to the reasoning in Roe itself is that, while the opinion asserted that the Court “need not resolve the difficult question of when life begins,” the Court was necessarily deciding that the state could not constitutionally protect the fetus for its own sake until the third trimester.

Yet even conceding that the reasoning of Roe itself is quite muddled, the question today is complicated by the fact that a constitutional right to abortion access had been acknowledged and preserved for half a century. And while the Court has regularly reversed itself in the direction of expanding constitutional rights, it has rarely reversed itself in the opposite direction of revoking constitutional rights once protected. Indeed, the only other explicit example of that in the Court’s history is West Coast Hotel Co. v. Parrish, which abandoned constitutional protection for the liberty of contract and labor previously acknowledged in Lochner v. New York and Adkins v. Children’s Hospital.

That is not to say that rescinding protection for constitutional rights should be unthinkable, but rather that there should be an extraordinarily high bar for such a momentous act. The legal deficiencies of Roe and Casey may well be “obvious” to some, but there are some scholars and judges who see errors just as “obvious” in cases like Citizens United v. FEC (campaign finance), District of Columbia v. Heller (gun possession), or Janus v. AFSCME (compelled support of public employee unions). Proponents of reversing Roe and Casey should at least consider what a reversal might portend in future years, when the ideological makeup of the Court might be quite different.

III. The Court’s process for identifying unenumerated rights that are entitled to meaningful judicial protection is un-originalist, ends-oriented, and deeply flawed

Even assuming the Dobbs majority is correct in its ultimate conclusion—that the Constitution does not protect a general right to elective abortion—the opinion as written falls well short of answering that question with sufficient originalist rigor, because its analysis relies almost entirely on the “Glucksberg test” for assessing so-called “unenumerated rights.” Washington v. Glucksberg was a 1997 Supreme Court decision holding that there is no constitutional right to assisted suicide, in which the Court held that “substantive due process” protects only those fundamental liberties that are “objectively, deeply rooted in this Nation’s history and tradition.” But the Dobbs majority offers little justification for this test itself, and there is ample reason to question it.

First, Glucksberg concerns the doctrine of substantive due process, yet Dobbs all but ignores that the Privileges or Immunities Clause may be the more natural textual basis for protecting “unenumerated rights” than the Due Process Clause. In the Slaughter-House Cases in 1873, the Supreme Court effectively read the Privileges or Immunities Clause out of the Constitution, holding that this provision protects only those rights that “owe their existence to the Federal government,” such as the right to access federally navigable waterways and protection against piracy on the high seas. Thus, it excluded from protection anything that might be termed natural liberty, such as the rights to acquire and possess property, make contracts, pursue safety and happiness, along with all the liberties mentioned in the Bill of Rights. However, despite overwhelming consensus that this narrow interpretation is wrong, Justice Thomas and Justice Gorsuch are the only members of the current Court that have expressed interest in revisiting this grievous mistake.

To be sure, the Dobbs majority dropped a footnote asserting that its conclusion would be the same under the Privileges or Immunities Clause, which would require the same “deeply rooted” analysis as Glucksberg. But that ipse dixit ignores the rich scholarship explaining how this long-ignored provision is best understood as requiring the state to demonstrate legitimate rationales when it restricts liberty. In other words, the Court entirely ignores the argument that the Privileges or Immunities Clause requires a “presumption of liberty.”

Second, the Glucksberg test requires that a right be “carefully defined” before assessing whether it is “deeply rooted,” but there are different levels of generality at which a right can be defined. For example, the dispute in Bowers v. Hardwick—which upheld a state prohibition on “sodomy”—turned in part on whether the relevant right at issue was “a fundamental right [of] homosexuals to engage in sodomy” or the right of adults “to decide for themselves whether to engage in particular forms of private, consensual sexual activity.” One of these rights is much easier to characterize as “deeply rooted,” yet Glucksberg offers no real guidance on the “correct” way to frame such questions. This problem of generality-shifting is thus closely related to another major criticism of Glucksberg, which is that a narrow emphasis on rights that are “deeply rooted” has the inevitable effect of disfavoring rights that would specifically benefit historically marginalized groups.

Similarly, consider the D.C. Circuit’s 2007 en banc decision Abigail Alliance v. Eschenbach, which ruled against terminally ill patients who wanted to use experimental drugs not yet approved by the FDA. The majority framed the relevant question as “whether terminally ill patients have a fundamental right to experimental drugs that have passed Phase I clinical testing.” Of course, given the relatively recent history of FDA regulation in this country, a right defined so narrowly would, nearly by definition, not be “deeply rooted.” Yet as the dissent explained, the “right to act to save one’s own life” absolutely was deeply rooted in our nation’s history. Assuming this was the appropriate level of generality, then the majority erred by “conflating the right with the deprivation.”

Third, the Glucksberg test fails even to protect those fundamental rights that clearly are “deeply rooted” by any reasonable standard. The most obvious example here would be the right to pursue a lawful occupation, and thus to be free of occupational-licensing restrictions enacted solely for arbitrary or protectionist reasons. In the Slaughter-House Cases themselves, Justice Field explained in his dissent how “privileges or immunities” included “the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.” Moreover, protecting this particular aspect of liberty—which had been so flagrantly denied to both slaves and freedmen—was a core motivation for passage of the Fourteenth Amendment itself. John Bingham, principal framer of the Fourteenth Amendment, wrote that its enactment would protect “the liberty … to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

Nevertheless, at least since the infamous Williamson v. Lee Optical decision of 1955, the Supreme Court has given no meaningful protection to this fundamental right, declaring that occupational-licensing barriers are subject only to the “rational basis test”—which explicitly requires judges to ignore the actual reasons for restrictions on occupational freedom, and instead imagine possible rationales a legislature might have had. The utter failure of Glucksberg to check infringements on vocational liberty is the clearest indication that the test was never intended to be a principled doctrinal mechanism for identifying and protecting fundamental rights; rather, it is a results-oriented, endlessly manipulable artifice that allows judges to sidestep protecting fundamental rights entirely.

Again, there are reasonable arguments that—even taking into account a more robust understanding of the Privileges or Immunities Clause and fundamental rights—the Fourteenth Amendment still doesn’t protect a general right to elective abortion. But as Professor Evan Bernick recently stated, it makes no sense to hail Dobbs as a “triumph of originalism” when the opinion “barely perceives an obligation to be originalist at all.”

Conclusion

In sum, reasonable minds—including reasonable libertarian minds—can disagree about the moral nature of abortion itself, the constitutional status of abortion rights, and the proper legal framework with which to evaluate asserted claims of a right to abortion access in particular circumstances. Likewise, critics of the Court’s abortion cases can reasonably disagree on the most principled way to address precedents whose reasoning arguably has not withstood the test of time.

In the aftermath of Dobbs, some states may well attempt to regulate abortion in ways that do pose grave concerns for libertarians generally and Cato specifically, not because of abortion itself but because of more general constitutional principles. For example, many states are pursuing plans not just to prohibit abortion within their own borders, but also to punish residents who cross state lines to receive an abortion in a state where its legal. Similarly, if Congress attempted to either prohibit abortion or enshrine abortions rights nationwide, that would inevitably raise questions about whether such acts are within the scope of Congress’s enumerated powers at all.

If and when such questions arise, Cato will not hesitate to advance the principles of federalism and limited government that we always have. But as to the issues in Dobbs itself, we don’t believe these questions have an answer so obvious or uncontroversial that principle demands adopting an institutional position that will undoubtedly be at odds with the legal judgment of one group or another of our respected colleagues.