It seems there’s more than meets the eye in the Court’s declining to review the Montana case.

Late yesterday, I related that the Supreme Court had admonished a federal judge, in the so-called third-country deportation case, for trying to enforce against the Trump administration an injunction that the Supreme Court justices had nullified less than two weeks ago. That wasn’t the Court’s only action on the eve of Independence Day.

The Court declined to review a case (Montana v. Planned Parenthood) in which, relying on its state constitution, the Montana Supreme Court had invalidated a state law that required physicians to obtain consent from parents before performing an abortion on their minor child.

The Court declines certiorari in most cases, so, ordinarily, this would not be a very newsworthy. Here, however, originalist Justices Samuel Alito and Clarence Thomas joined a statement (penned by Justice Alito) to explain that it would be a mistake to read too much into the Court’s refusal to review the case. The two justices manifestly believe that the Court should weigh in on the important question of whether the federal constitutional right of parents to make decisions regarding the care, custody, and control of their children is infringed by a state court’s enabling a minor to obtain an abortion without parental consent.

Justice Alito explains that the posture of the Montana case — specifically, the Supreme Court precedents that were raised in the litigation but not squarely material to the state court’s ruling — made it a “poor vehicle” for Supreme Court review. Nevertheless, he writes: “It is therefore especially important that the denial of review is not read by interested parties or other courts as a rejection of the argument” and that “a parent’s fundamental right to direct the care and custody of his or her children includes a right to know and participate in decisions concerning their minor child’s medical care, including a minor’s decision to seek an abortion.”

This is worth watching, not least because the parental right at issue is unenumerated in the Constitution; the Court derived it from its 14th Amendment substantive due process jurisprudence. See, e.g., Troxel v. Granville (2000), one of the cases referred to in the Montana ruling. That doctrine’s heyday is past. It is now in disrepute, as Justice Thomas observed in his concurrence in Dobbs v. Jackson Women’s Health Org. (2022): “Substantive due process is an oxymoron that lacks any basis in the Constitution” (internal quotations and citations omitted).

Dobbs, of course, was written by Justice Alito and joined by Justice Thomas, and it overruled Roe v. Wade (1973) as well as Planned Parenthood v. Casey (1992), the laborious attempt by a 5–4 majority to save Roe from its flaws and internal contradictions. The Dobbs Court rejected the claim that the unenumerated “right” to an abortion, fabricated on a substantive due process theory, had to be rejected because it was not “deeply rooted in this Nation’s history and tradition” (quoting the Court’s 1997 decision in Washington v. Glucksberg).

If the Court takes up a case involving a putative right of parental consent in the abortion context, it will have to grapple with the provenance of that right. On that score, note that Justice Thomas has contended that some fundamental rights that have been recognized on a substantive due process theory could be on firmer footing if the Court reexamined them under the 14th Amendment’s privileges and immunities clause. (See, e.g., Thomas’s Dobbs concurrence — and the intimation is also there in a footnote of his Troxel concurrence.)