Page:Dobbs v. Jackson Women's Health Organization.pdf/120

4 14, §1; see McDonald, 561 U. S., at 806 (opinion of ). 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 ); accord, Obergefell, 576 U. S., at 722 (, 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) (, 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 ) (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