The Supreme Court in Washington, May 14.

Photo: LEAH MILLIS/REUTERS

Regarding “The True Originalist Answer to Roe v. Wade” (Letters, May 9): Northwestern Law Prof. Steven Calabresi’s argument that the leaked Dobbs draft embodies New Deal constitutionalism is clever but misguided. The claim fails to capture the marvel of the draft that, if finalized, would simultaneously maintain synergy with precedent and stand as one of the opinions most consistent with originalism in this century and the last one.

As Mr. Calabresi observes, an opinion written on an entirely clean state right after the 14th Amendment’s 1868 ratification would note that the Due Process Clause by its terms contains no substantive rights. Those instead derive from the companion Privileges and Immunities Clause.

But the Dobbs draft makes tremendous strides toward this original understanding. It clears away the underbrush of the Supreme Court’s jumbled abortion-as-health policy jurisprudence, which the court itself has altered multiple times since Roe (think, e.g., Casey—“undue burden” and Whole Women’s Health—“cost-benefit” assessment). Consistent with the nonsubstantive content of procedural due process, the draft opinion relies on Washington v. Glucksberg, the 1997 case rejecting an asserted right to assisted suicide. Chief Justice William Rehnquist’s 1997 opinion stemmed from 1930s cases and primarily focused on what the Due Process Clause does not include—embodiment of any asserted right that is not “deeply rooted in this Nation’s history and tradition.” The court’s two committed originalists at the time, Justices Antonin Scalia and Clarence Thomas, joined in full.

The draft Dobbs opinion demonstrates that recently confirmed Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett remain true to their Senate-hearing testimony. The accounts of their agreement with the leaked draft suggest that these justices have carefully weighed the court’s conflicting past precedent in light of the underlying constitutional text. The institution of the Supreme Court would be best served by the issuance of the Dobbs opinion in short order, minimizing the turmoil from the unprecedented leak.

Prof. Jennifer Mascott

George Mason U., Scalia Law School

Arlington, Va.