For readers familiar with Kurt Vonnegut’s sci-fi classic—fair warning that I’m not going to tell a semi-autobiographical, nihilistic story about aliens and time travel. I’m just not that creative! But when I read the prospective majority opinion in Dobbs v. Jackson Women’s Health leaked by Politico earlier this month, the first phrase that came to my mind was “slaughterhouse-two.” The basis of the decision, which narrows the scope of Fourteenth Amendment protections, is remarkably similar to the 1873 Slaughterhouse Cases.
Some commentators have drawn comparisons between Dobbs and the most infamous SCOTUS decision of all time, Dred Scott v. Sandford (1857). But these writers emphasize that both cases waded into politically charged waters and that the majority opinions inflamed public sentiment. None has drawn concrete comparisons in terms of the logic, decision-making, or final holding of the court in both cases. That’s because there aren’t too many similarities beyond the fact that both are controversial and reflect deeply entrenched philosophical differences between the two competing factions (pro-life vs. pro-choice; pro-slavery vs. anti-slavery).
Much of Justice Samuel Alito’s draft majority opinion focuses on the interpretation of the Fourteenth Amendment, which was ratified long after Dred Scott. That case is certainly part of the fraught history of the Fourteenth Amendment, but it is not one especially comparable to Dobbs.
In my opinion, the only worthy comparison is Slaughterhouse. So it goes.
Prior to Slaughterhouse in 1873, SCOTUS had purposefully avoided ruling on cases that involved the recently ratified Fourteenth Amendment. The newly created Office of the Attorney General had initiated prosecutions of Ku Klux Klan members in South Carolina who violated the constitutional rights of Black men and women, and the lead litigator had invoked the Fourteenth Amendment in his legal reasoning. He hoped to elicit guidance from the Supreme Court as to the meaning, scope, and application of this revolutionary constitutional amendment.
Yet when these cases went up to the highest court, the justices shirked the main issue at hand: did the Fourteenth Amendment make it incumbent upon the national government to protect the rights and freedom of Black citizens even if it meant intervening in traditionally state-level matters like law enforcement? To say “yes” meant a revolutionary change in the contours of American federalism (meaning the division of power between state and national layers of government); to say “no” meant abandoning Black Americans to the so-called “protection” of state and local governing institutions that would have preferred them to be re-enslaved.
The court proved reluctant to rule on the scope of the Fourteenth Amendment in cases that directly involved its purpose—the protection of Black equal rights. But when a group of white petitioners invoked the same amendment to defend their rights as American citizens, SCOTUS suddenly discovered an opinion about the matter. The state of Louisiana had a terrible problem with unsanitary conditions caused by the slaughterhouses surrounding New Orleans and tried to improve things by creating a corporation with special privileges. The company would own and operate one central slaughterhouse facility with approved standards for hygiene and sanitation practices; all butchers would have to do their slaughtering at the designated facility, even if it was inconvenient.
The Louisiana butchers argued that the state’s monopoly slaughterhouse corporation violated their right to pursue their occupation, and therefore their liberty as American citizens. Their attorney outlined a series of constitutionally protected, individual rights that guarantee liberty and freedom which resonate even today. He described a “right to one’s self” that sounds remarkably similar to the contested right to personal autonomy: a right “to one’s own faculties, physical and intellectual, one’s own brain, eyes, hands, feet, in a word to his soul and body, was an incontestable right.” In short, the monopoly robbed them of the autonomy and freedom protected by the Fourteenth Amendment.
Chief Justice Samuel Miller rejected the idea, saying that Fourteenth Amendment claims must be evaluated in light of the “pervading spirit of [the Reconstruction Amendments], the evil which they were designed to remedy.” Justice Miller defined quite clearly what he and the court understood the purpose of the Thirteenth, Fourteenth, and Fifteenth Amendments to be, which was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” White Louisianan butchers inconvenienced by a state law designed “for the good of the city” fell well outside the scope of that protection.
Slaughterhouse was, above all else, a reaffirmation of state-level police powers. When prosecutions of Ku Klux Klan members threatened to turn racially motivated murders into federal crimes rather than state-level ones, SCOTUS stifled the revolutionary aspirations of the Fourteenth Amendment rather than upset the balance of government power shared between national and state institutions. In the end, the court left it up to the people of a state to come up with policies that suited their needs and sentiments. The problem turned out to be that voting majorities within the states decided that laws targeting racial minorities fit that description.
Once the court spoke with a loud, clear voice against an expansive view of the Fourteenth Amendment, it was easy to whittle away the rights of Black men and women. Even though Justice Miller had drawn a clear distinction between federal cases that touched upon the great issues of race and slavery animating the Reconstruction Amendments, the court consistently took a narrow view that exonerated the national government from doing anything to enforce the equitable treatment of Black Americans by their state governments. Laws mandating segregation and curtailing suffrage slowly piled up, all justified by the robust police powers of the states in contradistinction to the limited government at the national level. So it goes.
undoing the world slaughterhouse made
Proponents of limited government tend to emphasize financial conservatism and skip over the fact that some of the most dearly held freedoms we venerate today were won by the federal courts dropping the overly narrow view of the Fourteenth Amendment enshrined by Slaughterhouse.
Rights ranging from First Amendment free speech to Fourth Amendment privacy and everything in between received a remarkable reinterpretation in the twentieth century. Laws targeting people of color, women, LGBTQ people, and cultural non-conformists of all stripes ran headlong into a new understanding of the Fourteenth Amendment’s Due Process Clause as a way of protecting certain rights that make sense to us in the modern age but are not specifically enumerated in the Constitution. This concept is called “substantive due process.”
Some people claim to oppose “substantive due process,” saying that the various amendments within the Bill of Rights were never designed to protect the things we invoke them for today—like gay marriage and abortion. This mentality inspires judicial originalism and its simplicity may seem appealing at first glance. But it breaks down in the face of overwhelmingly popular “substantive” rights, like legal access to contraception, interracial marriage, and the decriminalization of consensual homosexual activity. It was a primary vehicle for establishing precedents that promoted gender equality after the Equal Rights Amendment had been defeated. The truth is that most Americans like at least some elements of the “substantive due process” framework. The “rights revolution” of the twentieth century stands on its shoulders. So it goes.
Just like the Slaughterhouse Cases of the early 1870s, Dobbs v. Jackson Women’s Health reaffirms tremendous state-level police power by taking a narrow view of the Fourteenth Amendment.
The opinion first constricts the application of Fourteenth Amendment “substantive due process” claims by saying that the concept only protects unenumerated rights that are rooted in American “history and tradition.” Since abortion has been penalized as a crime in most American states for much of our nation’s history, it cannot be understood as an unenumerated right worthy of protection. Such a commitment to historicism endangers a host of other rights currently enjoyed by women and LGBTQ people who have historically been marginalized by law.
In response to this concern, Justice Alito argues that abortion is categorically different from other “substantive” rights because it concerns a “potential life.” You might imagine, then, that the SCOTUS majority outlines a notion of fetal personhood that confers legally defensible citizenship rights upon the unborn. And yet it does not. Dobbs says nothing about a constitutional right to life. In fact, the majority admits that this decision would vest left-leaning states with sufficient authority to permit abortion far beyond the current national cutoff range of 20-24 weeks. Dobbs leaves the question of terminating a pregnancy from Week 1 to Week 40 squarely before each individual state legislature, and subject to change at any time. The decision is unequivocally founded upon states’ rights, not an assertion of constitutional protection for prenatal life.
The signatories of the Dobbs draft opinion promise that “our conclusion that the Constitution does not confer such a right [to abortion] does not undermine” other decisions pertaining to reproductive and gay rights “in any way.” But even if we take Alito at his word (which I don’t), the logic he outlines undoubtedly forecloses the application of substantive due process to other perceived rights that Americans might claim worthy of constitutional protection in the future. If those claims extend too far afield from the court’s understanding of what the “right to privacy” should entail, they will be snuffed out as insufficiently rooted in “history and tradition.”
Despite its endorsement for states’ regulating the bodies and medical decisions of women living within their borders, Justice Alito’s draft opinion says disturbingly little about women themselves. In sharp contrast to Second Amendment jurisprudence, which has emphasized a folksy “cowboys and Indians” context to justify an expansive interpretation of the right to bear arms, Dobbs offers zero contextualization for the historical record of abortion laws presented—which obviously excludes the voices of women on account of their legally inferior status for the overwhelming majority of western history.
Instead, Justice Alito encourages women “on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” This is small comfort for court watchers familiar with recent decisions that have upheld partisan gerrymandering and thereby rendered the voices of regular voters increasingly irrelevant to the exercise of state-level political power. Still, says the majority, “women are not without electoral or political power,” and they should (like the Louisiana butchers) look to politics for a solution rather than the courts. So it goes.
Even though some commentators have drawn connections between Dobbs and Dred Scott, the better comparison is to Slaughterhouse Cases. In Slaughterhouse, SCOTUS clipped the wings of the Fourteenth Amendment and set federal jurisprudence on a path of denying constitutional protection to civil rights for more than fifty years. Even though Justice Miller had stated that the court would bear in mind the intent of the Reconstruction Amendments when evaluating Fourteenth Amendment claims, the promise proved to be hollow. Slaughterhouse turned out to be nothing more than a setup for a federal retreat from the enforcement of Black Americans’ equal rights.
Back in the 1870s, the court’s decision to leave the question of Black rights to state legislatures reflected the mood of the white Americans who had grown tired of Reconstruction. Dealing with the political questions it posed and racial consequences which it evinced seemed unending and impossible. The court echoed white America’s indifference about Black rights and racial equality before the law. The revolutionary aspects of Reconstruction died with the banging of a gavel, all of which began with Slaughterhouse.
That case purposefully overturned Dred Scott, saying that the Fourteenth Amendment made Black men and women American citizens. But the citizenship rights conferred by the national government were few—limited only to those specifically listed in the Bill of Rights—and had no bearing upon the civil and political rights conferred by state governments upon their citizens. As Reconstruction was falling apart, Republicans who had previously gone to great lengths to defend Black rights began calling on Black men to protect their own rights by using the power of the polls.
Federal defense of Black voting rights became an excuse for failing to protect civil rights—the justification generally held that if Black men did not like the laws of their state, they should engage politically to change them. As we all know, though, Black men were outnumbered in much of the American South and were unable to prevent racist voting majorities from stripping them of their rights, suffrage included. In a stunning recapitulation of this attitude, the Dobbs majority tells women to use their federally protected political rights to influence state policy; the immediate circumstances and the stakes are different, but the principle of SCOTUS metaphorically washing its hands of a controversial subject remains the same. Where the 1870s court grew apathetic about defending Black rights, it would seem that the 2020s court is apathetic about “substantive” ones.
If the Dobbs opinion stands as written in the draft, there would be no constitutionally guaranteed protection for the traditional abortion-ban exceptions reserved for pregnancies resulting from rape or incest and those threatening the life of the mother. A pregnant woman’s right to autonomy and privacy takes a backseat to state-level, majoritarian politics. A pregnant woman’s right to life must yield to the purported “will of the people,” even though state legislation tends to be bought and paid for by interest groups. What a stunning, stinging retreat from judicial endorsement of women’s equality, women’s full participation in civic life, and a woman’s right to be seen in law as more than an incubator.
To surrender so much, not to a notion of constitutionally protected fetal life but to the dangerous doctrine of states’ rights, is a tough pill to swallow. It may be that one day soon the American public will want to abort the jurisprudence currently gestating in the Supreme Court. If not, we can only hope that “slaughterhouse-two,” the child of Dobbs—the resurgence of states’ rights—is less contemptible than the offspring of “slaughterhouse-one.” So it goes.