THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,              

Thomas Concurrs

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 19–1392

THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS v. JACKSON WOMEN’S

HEALTH ORGANIZATION, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2022]

JUSTICE THOMAS, concurring.

I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause. Such a right is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). “[T]he idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.” June Medical Services L. L. C. v. Russo, 591 U. S. , (2020) (THOMAS, J., dissenting) (slip op., at 17).

I write separately to emphasize a second, more funda-

mental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. , (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).

As I have previously explained, “substantive due process”

is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut,

381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. , (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble

v. United States, 587 U. S. , (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.

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*Griswold v. Connecticut purported not to rely on the Due Process Clause, but rather reasoned “that specific guarantees in the Bill of Rights”—including rights enumerated in the First, Third, Fourth, Fifth, and Ninth Amendments—“have penumbras, formed by emanations,” that create “zones of privacy.” 381 U. S., at 484. Since Griswold, the Court, perhaps recognizing the facial absurdity of Griswold’s penumbral argument, has characterized the decision as one rooted in substantive due process. See, e.g., Obergefell v. Hodges, 576 U. S. 644, 663 (2015);

Washington v. Glucksberg, 521 U. S. 702, 720 (1997).

14, §1; see McDonald, 561 U. S., at 806 (opinion of THOMAS, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22.

Moreover, apart from being a demonstrably incorrect reading of the Due Process Clause, the “legal fiction” of substantive due process is “particularly dangerous.” McDonald, 561 U. S., at 811 (opinion of THOMAS, J.); accord, Obergefell, 576 U. S., at 722 (THOMAS, J., dissenting). At least three dangers favor jettisoning the doctrine entirely.

First, “substantive due process exalts judges at the expense of the People from whom they derive their authority.” Ibid. Because the Due Process Clause “speaks only to ‘process,’ the Court has long struggled to define what substantive rights it protects.” Timbs v. Indiana, 586 U. S. , (2019) (THOMAS, J., concurring in judgment) (slip op., at 2) (internal quotation marks omitted). In practice, the Court’s approach for identifying those “fundamental” rights “unquestionably involves policymaking rather than neutral legal analysis.” Carlton, 512 U. S., at 41–42 (opinion of Scalia, J.); see also McDonald, 561 U. S., at 812 (opinion of THOMAS, J.) (substantive due process is “a jurisprudence devoid of a guiding principle”). The Court divines new rights in line with “its own, extraconstitutional value preferences” and nullifies state laws that do not align with the judicially created guarantees. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 794 (1986) (White, J., dissenting).

Nowhere is this exaltation of judicial policymaking

clearer than this Court’s abortion jurisprudence. In Roe v.

Wade, 410 U. S. 113 (1973), the Court divined a right to abortion because it “fe[lt]” that “the Fourteenth Amendment’s concept of personal liberty” included a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id., at

153. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court likewise identified an abortion guarantee in “the liberty protected by the Fourteenth Amendment,” but, rather than a “right of privacy,” it invoked an ethereal “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id., at 851. As the Court’s preferred manifestation of “liberty” changed, so, too, did the test used to protect it, as Roe’s author lamented. See Casey, 505 U. S., at 930 (Blackmun, J., concurring in part and dissenting in part) (“[T]he Roe framework is far more administrable, and far less manipulable, than the ‘undue burden’ standard”).

Now, in this case, the nature of the purported “liberty” supporting the abortion right has shifted yet again. Respondents and the United States propose no fewer than three different interests that supposedly spring from the Due Process Clause. They include “bodily integrity,” “personal autonomy in matters of family, medical care, and faith,” Brief for Respondents 21, and “women’s equal citizenship,” Brief for United States as Amicus Curiae 24. That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification. Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453–454 (1972) (relying on Griswold to invalidate a state statute prohibiting distribution of contraceptives to unmarried persons). Statutory classifications implicating certain “nonfundamental” rights, meanwhile, receive only cursory review. See, e.g., Armour v. Indianapolis, 566 U. S. 673, 680 (2012). Similarly, this Court deems unconstitutionally “vague” or “overbroad” those laws that impinge on its preferred rights, while letting slide those laws that implicate supposedly lesser values. See, e.g., Johnson, 576 U. S., at 618–621 (opinion of THOMAS, J.); United States v. Sineneng-Smith, 590 U. S. , – (2020) (THOMAS, J., concurring) (slip op., at 3–5). “In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade,” and it since has been “deployed . . . to nullify even mild regulations of the abortion industry.” Johnson, 576 U. S., at 620–621 (opinion of THOMAS, J.). Therefore, regardless of the doctrinal context, the Court often “demand[s] extra justifications for encroachments” on “preferred rights” while “relax[ing] purportedly higher standards of review for lesspreferred rights.” Whole Woman’s Health v. Hellerstedt, 579 U. S. 582, 640–642 (2016) (THOMAS, J., dissenting).

Substantive due process is the core inspiration for many of

the Court’s constitutionally unmoored policy judgments.

Third, substantive due process is often wielded to “disastrous ends.” Gamble, 587 U. S., at (THOMAS, J., concurring) (slip op., at 16). For instance, in Dred Scott v. Sandford, 19 How. 393 (1857), the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. See id., at 452. While Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,” Obergefell, 576 U. S., at 696 (ROBERTS, C. J., dissenting), that overruling was “[p]urchased at the price of immeasurable human suffering,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment). Now today, the Court rightly overrules Roe and

Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions, Timbs, 586 U. S., at (opinion of THOMAS, J.) (slip op., at 2)—after more than 63 million abortions have been performed, see National Right to Life Committee, Abortion Statistics (Jan. 2022), https:// www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf. The harm caused by this Court’s forays into substantive due process remains immeasurable.

* * *

Because the Court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the Court’s opinion. But, in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” Carlton, 512 U. S., at 42 (opinion of Scalia, J.). Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.