The founding fathers of the United States, the authors of the Constitution, also ratified by the states, wrote to limit the powers of the federal government.  They listed the powers and reserved to the states those they didn’t.  They included a bill of rights.  This guaranteed to everyone in the entire nation those rights.  The Constitution imparts all the powers of the federal government and all the rights guaranteed to all the people of the United States.

Are there other rights in the Constitution of the United States other than those enumerated in the bill of rights and its other amendments?  The history of Supreme Court interpretation of the Constitution both from loose and strict constructionists says, “Yes,” there are other rights.  They call those substantive rights.  They relate to life, liberty, and property, those three appearing only in the amendments, but assumed or implied rights from the history and tradition of the United States.

In Dobbs, the Supreme Court decided no right to abortion occurred in the Constitution, overturning Roe.  In the 213 pages of Dobbs, the term “substantive” occurs 39 times.

Justice Alito Argues

Justice Alito writes the first usage of “substantive” on page 2 in this sentence:

The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial.

Casey argued that a liberty or right to abortion did exist as a substantive right in the due process clause of the fourteenth amendment.  In its next usage also on page 2, Alito defines substantive rights as “those rights deemed fundamental that are not mentioned anywhere in the Constitution.”  Alito then on page 19 argues for the majority in Dobbs that the fourteenth amendment protects two categories of rights, first those “guaranteed by the first eight Amendments.”  Alito continues on page 20:

The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.  In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3).

Alito explains on verse 22:

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125 (1992). “Substantive due process has at times been a treacherous field for this Court,” Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion), and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.

Alito goes on to write (p. 41) that, based upon the “specific practices of states,” abortion did not fall within even the “outer limits” of these so-called substantive rights.  Alito makes this important statement then on page 44:

[D]espite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.

Alito does not reject the concept of substantive rights in the Constitution, but he writes for the majority, especially four Justices in the majority, that Roe failed on that important precedent.

Justice Thomas Concurs

Then Justice Thomas writes in his concurring opinion (p. 118):

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”).

Furthermore, Thomas writes (p. 118):

Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

Thomas argues that no substantive due process rights even exist.  The various Supreme Courts invented these out of whole cloth.

As a result, Justice Thomas writes (p. 119):

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.

As an example, the Supreme Court argued in Obergefell a substantive due process right of same sex marriage based upon the fourteenth amendment.  Thomas concludes (p. 123):

[I]n 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.).

Apparently substantive rights themselves exist in the constitution in addition to stated rights, but not substantive due process rights.

The Substantive Right to Life in the Constitution

What are substantive rights?

Substantive rights are rights to life, liberty, and property.  Do we not agree that the Constitution guarantees the substantive right to life.  Should the Supreme Court not have gone further with its ruling?  Should it not have argued that abortion is in fact a violation of the right to life found in the Constitution of the United States?  That is an argument based upon the Constitution and deeply rooted in the history and tradition of the United States.

I am sure that no state allowed abortion when the fourteenth amendment was ratified.  States provided an unborn child a right to life.  At the time of Roe, 30 States still prohibited abortion at all stages. Less evidence existed then than does now that life begins at conception.  An ultrasound detects a fetal heartbeat at 6 1/2 to 7 weeks.

Some ask why Kavanaugh disappoints Trump?  President Trump sees fear in Kavanaugh.  The Democrats in the confirmation hearing framed him as a criminal, accusing him of sexual harassment when he was 17 years old.  They intimidated him.  He famously broke down and cried in that hearing.  If Trump sees weakness, a language or decision that reflects that weakness, he questions it, using what I call, Trump-speak.  Whatever pressure comes from the other side, he counteracts from his side.  I understand it.  If you don’t see it, that doesn’t mean it doesn’t exist.

Kavanaugh wrote the following in his concurring opinion (pp. 125-128):

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve. . . . Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. . . . This Court therefore does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion.

Is the Constitution not pro-life?  Is it really neutral on the matter of life?  Does the Constitution not protect life as a substantive right?  On the other hand, Kavanaugh sees same sex marriage as a substantive right.  He implies that the Constitution is not neutral on same sex marriage, when he writes (p.  133):

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.

Along the lines of substantive rights in the constitution, consider if Kavanaugh applied his Roe test to Obergefell by writing the following:  On the question of same sex marriage, the Constitution is therefore neither pro-sex marriage nor anti-same sex marriage.  He doesn’t see a substantive right to life, but he does see a substantive right to same sex marriage.  Can this be true?  Kavanaugh reads like a lie.

Dobbs was but a first battle in a war for life in this country.  In one sense, it is a pretext for the actual war that must occur.  We must all start by telling the truth, not only about abortion itself, but about the Dobbs decision.  We can all celebrate what it did do, but we also must be realistic about what it did not.

Dobbs didn’t do away with abortion.  The United States aborted almost a million babies last year.  Everyone of those can still happen if someone wants.  This war is far from over.