Tribe has a point. If the Court were to address all claims of unenumerated rights by asking (a) whether the constitutional text grants the right, and, if not, (b) whether history and tradition support such a right, the case for gay marriage or certain sexual practices begins to crumble. Alito’s draft distinguishes these cases on something like John Stuart Mill’s harm principle: that individuals should have the liberty to act, unless they harm third parties. The Dobbs draft argues that the right to marry (including the right to same-sex marriage), use contraceptives, engage in sexual practices, and raise children do not harm others. “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey relied,” Alito says, is that “abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” There is no wide consensus that abortion is an individual right; to the contrary, Alito observes, states had long regulated abortion, and even after Roe states continued to challenge whether the right exists.
Alito’s promise not to touch gay marriage or contraception, however, has the flavor of an ipse dixit — he won’t because he says he won’t. The draft opinion does not advance a theory of the Constitution to explain why the Court must strike down Roe but leave these other unenumerated rights intact. In this respect, the Dobbs draft — despite the claims of Tribe and other liberal commentators — actually adopts a relatively modest stance. At its core, it makes a claim not about individual rights so much as about the political process. It says that the Constitution does not take a position on most questions concerning freedom and liberty beyond those in the plain text of the Bill of Rights and the Reconstruction Amendments. Instead, the Constitution leaves those issues up to the states, where voters can decide. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito writes. He then quotes Justice Scalia’s dissent in Casey, which made the strongest case for letting politics decide: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”