Evaluating the Supreme Court’s Dobbs Ruling
Listen to the following podcast from July 1, 2022, in which Jeff Shafer, director of the Hale Institute, evaluates the Supreme Court’s recent decision reversing Roe v. Wade.
Below is a transcript of the foregoing podcast.
On June 24, Friday of last week, the Supreme Court released its decision in Dobbs [v. Jackson Women’s Health Organization]. With that ruling, we were given cause for rejoicing due to its reversal of Roe v. Wade and Planned Parenthood v. Casey, two decisions ranking among the worst, the most indefensible Supreme Court decisions in American history. The stain these brought on the Court, and on the nation itself, was partly remediated in the Dobbs ruling and its majority opinion that decisively repudiated the Roe and Casey decisions, withdrawing them not just from the annals of operable judicial authority but indicting them as the lawless compositions that they obviously are.
Justice Alito wrote for the majority, and he described Roe’s analysis as “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Comprising the court majority in this case were Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts, while agreeing that the Mississippi law forbidding abortion after 15 weeks gestation was constitutional, he did not join the five justices voting to overrule Roe and Casey. (More on that later.) Dissenting from the judgment on the Mississippi law and from the reversal of Roe and Casey were Justices Breyer, Sotomayor, and Kagan. Therein the line-up.
The Dobbs ruling was a remedy whose necessity cannot be overstated. The decades-enduring persistence of Roe and Casey as binding authority in our constitutional caselaw served as affronts to the rule of law, as inversions of the law’s protective role, as defiance of the order of creation, as a deprecation of life and of innocence, of human meaning and of family. This sort of enduring grotesquery in the most elevated and powerfully symbolic precinct of American jurisprudence—that is, at the level of the Supreme Court—was a travesty demanding correction. Dobbs’ resolution was a moral triumph, and one long overdue.
Roe’s demerits
A majority opinion of the Supreme Court of the United States has laid out in plain language for all to read that Roe v. Wade was “egregiously wrong and deeply damaging.” Justice Alito’s opinion for the court majority in Dobbs has the tremendous merit and virtue of setting forth the unmitigated lawlessness of the almost fifty-year run of Roe, along with its follow-on cases. Roe was not a constitutional ruling; it was an abuse of the judicial office that spited the Constitution that it barely pretended to be interpreting.
And on that latter point, Justice Alito twice invoked the famous statement of abortion-supporting law professor John Hart Ely in an academic article he published soon after Roe was released. Prof. Ely had written that Roe “is not constitutional law” and gave “almost no sense of an obligation to try to be.”
Justice Thomas in his separate opinion in Dobbs also helpfully summarized the abortion legal advocacy landscape, writing that the fact “[t]hat 50 years have passed since Roe and abortion advocates still cannot coherently articulate the” constitutional grounding for it “proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”
And worth highlighting here is that the Court in Roe had not presented itself as particularly concerned about where in the Constitution the purported abortion right was located. The following is from Dobbs majority opinion:
Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.
Now, in the Dobbs ruling, the majority opinion took for granted the doctrine of so-called “substantive due process”—that is, the idea that the Constitution’s due process clause grants rights not written in the Constitution. Yet the Dobbs majority explained that its precedents (the Court’s precedents) establish that any such unwritten rights are not validly discovered and applied unless they are deeply rooted in our nation’s history and traditions. Of course, no such thing can be said about abortion. Justice Alito’s opinion for the Court in Dobbs reviewed approximately 700 years of Anglo-American legal history, from the common law through the years up to Roe v. Wade, summarizing that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
There is simply no remedial description available to show that the fifty years of Roe’s prevalence was based in law. It was fiat and deception. Roe is in the refuse bin now, beyond rehabilitation. And hooray for that.
Some concerns with Dobbs
Now. All that said, we have some concerns about the majority opinion in Dobbs. This is not to detract from its great accomplishment or our gladness and gratitude for it. It’s just there are points that are less than ideal.
I’ll approach this by saying that there are difficulties and restraints attending the task of obtaining the votes of five of the nine justices that is necessary for a majority ruling from the Court. The practical reality of this effort is that when the majority is composed of only five votes, any one of those justices holding certain reservations about, say, a more expansive ruling or explanation can influence the ruling and opinion toward a shape that will accommodate that fifth justice. Accordingly, the swing justice in the Court holds quite some influence.
While we do not know who among the majority of justices insisted on the particulars of the opinion that I am raising as points of concern, we do know that Justice Kavanagh certainly was one, as he made plain both at oral argument and in his separate opinion concurring in the judgment and the majority opinion. More on his epistle in a moment.
In any event, whether by common consent or the influence of certain justices, the Dobbs majority opinion regrettably avoided confronting directly the question of the personhood of the unborn child. Thus we read this in the opinion:
[O]ur decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests.
And there also was this:
The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes[.]
Ok. So the court majority feigned to take no position on the profound moral question of abortion, which, the Court said, it is not authorized or sufficiently expert to do.
Here we might ask: How is it that the Court is equipped—that is, authorized and sufficiently expert—to know (as the Court majority opinion repeatedly stated) that abortion implicates a profound moral question, and also for the Court to know (as it went on to rule) that states have a constitutionally legitimate interest in prohibiting abortion to preserve fetal life, yet the Court is unable to know that unborn human beings are that, and deserve legal protection?
This remains an unconvincing and unfortunate aspect of this opinion, and one presumably designed at the request of one or more justices wanting to keep the opinion from going in the direction of an affirmative constitutional right to life for the unborn—the same one that all born persons are acknowledged and legally guaranteed to have.
Some ameliorating considerations
Now, that having been said, I will consider some mitigating considerations here with respect to this. There are other aspects of the Dobbs opinion that don’t match with the majority’s purported agnosticism on the status of the unborn child’s life. And these, to some extent, ameliorate or compensate for its withholding a full repair of Roe’s misdescription of human life. While the need to cement a majority on the Court required some prudential drafting decisions involving avoiding explicit acknowledgment of the reality of the personhood of the unborn and their just claim to life against abortion, Justice Alito’s opinion nonetheless did gesture in this direction repeatedly.
For instance, we might consider the majority opinion’s extended emphasis on the unrelenting legal prohibitions on abortion throughout Anglo-American legal history until the late 20th century—that is, the very historical fact that sustained the Court’s finding that states have a constitutionally legitimate interest in protecting fetal life.
As the court majority explained, states today may regulate abortion for legitimate reasons, and one of those constitutionally recognized reasons is states’ interest to “preserv[e] prenatal life at all stages of development.”
Further, Justice Alito’s opinion makes it a matter of constitutional significance distinguishing the abortion right from all other similarly derived “rights-findings” by the Supreme Court, the fact that these involved the terminating of fetal life. The Dobbs majority opinion described that aspect as presenting a matter fundamentally different from all other rights cases, thus justifying the elimination of such practices from constitutional protection. That is, a negative view of the destruction of fetal life is constitutionally proper. That being so, we have started, I’d say, toward a more adequate description of the status of unborn persons.
Also notable is that the Dobbs court never offered that states have a constitutionally legitimate interest in assuring access to abortion. Only that they have a legitimate interest in preserving unborn human life at all stages of development.
There were other promising features of the opinion, including Justice Alito’s critique of Roe’s viability standard as well as of certain philosophical approaches that assign personhood only based on sentience or developed rational faculties. This discussion by Justice Alito might also be read as a veiled critique of the arbitrariness of the proposal that the moment of birth is a legally relevant demarcation line for the constitutional right to life.
All to say, Justice Alito’s opinion in Dobbs, while unfortunately avoiding explicit judgment on the status of human life (presumably doing so to hold a majority), he also crafted the opinion in a way that was not in fact neutral on the moral, ontological, and legal status of the person in the womb.
Now a quick rundown on the other opinions:
Justice Thomas’s concurring opinion
Justice Thomas had joined the majority opinion, but also wrote his own concurring opinion. In his separate opinion, he stated that he joined the majority because, “the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.” But he wrote a separate concurrence in order to supply the additional reason that Roe and Casey should be reversed, and that is that the Court’s practice of finding unwritten rights in the due process clause and calling them constitutional rights is unjustifiable and should be repudiated altogether. As a result, all the Court’s past decisions based on the method of “substantive due process” (which he identifies as an oxymoron)—not just Roe and Casey—but also the cases discovering a right to contraception access, homosexual sodomy, and same-sex civil marriage licensure should all be overruled. Justice Thomas also was the only justice to register the observation that that after Roe “more than 63 million abortions have been performed.” After which he concludes that “[t]he harm caused by this Court’s forays into substantive due process remains immeasurable.”
Justice Kavanaugh’s concurring opinion
Justice Kavanaugh, a member of the Court majority overruling Roe, also wrote a separate concurring opinion, and one of a curious sort. He seems to have had four principal reasons for writing separately. One was to insist (as he had done at the oral argument in the case), that the Constitution is “neutral”—neither in favor of nor against abortion. So on his account, open season on unborn human life is a practice on which the Constitution has nothing at all to say. While Justice Kavanaugh noted that certain authors of friend-of-the-court briefs had argued that the Constitution affirmatively protects the unborn person’s right to life, he rejected that proposal by stating that no justice on the Court had ever made that argument before; an observation which seems to me rather beside the point when the issue under discussion is the meaning of the Constitution. Indeed, Justice Kavanaugh’s vote to reverse Roe demonstrates conclusively his conviction that the votes and opinions of Supreme Court justices are different than the meaning of the Constitution itself.
The second and related priority in Justice Kavanaugh’s separate opinion was to assure abortion proponents that the Dobbs ruling leaves states fully authorized to “continue to readily allow abortion.”
The third reason for his opinion seems to be to permit opportunity for him to announce his personal assessment of the various justices through time who had ruled in favor of abortion rights or against them. He writes that he “greatly respects” all of them, and he knows they all acted in good faith and after careful deliberation based on their sincere understandings of the law.
Fourth, Justice Kavanaugh announced his take on certain legal questions related to abortion policy that were not presented to the Court in Dobbs. For instance, he volunteered that he thinks that states are forbidden to restrict their citizens from crossing into other states for purposes of obtaining an abortion.
Thus far with Justice Kavanaugh.
Chief Justice Roberts’ concurring opinion
Chief Justice Roberts—who did not join the majority—also wrote a separate, and perplexing, concurring opinion. He agreed that the Mississippi law prohibiting abortion after 15 weeks was constitutional, and agreed that the Roe and Casey viability standard is arbitrary and baseless. But he refused to join the Court in overruling Roe and Casey. How does one pull that off? Roe and Casey forbade all state law prohibitions on abortion prior to fetal viability (and effectively for the rest of pregnancy as well, because of Roe’s maternal health exception). The Mississippi abortion ban after 15 weeks is about two months prior to viability.
For his part, Chief Justice Roberts described Roe and Casey as merely presenting a woman a “right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend further---certainly not all the way to viability….”
He later wrote that:
Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman ‘to decide for herself’ whether to terminate her pregnancy.
To this “reasonable opportunity to get an abortion” rule concocted by the Chief Justice, Justice Alito in his opinion responded that it, like Roe’s rule, had no grounding in the Constitution, lacked any principled basis, and was pulled “out of thin air.”
The dissenting opinion
Now to the dissenting opinion.
Justices Breyer, Sotomayor, and Kagan dissented in a joint opinion that is really a screed rather than a legal argument. As such, their 60-page opinion has the effect of vindicating the majority’s ruling, as the dissenters offered a meandering series of aspersions and contestable policy assertions.
The dissenters make no claim to an historical grounding for an abortion right; indeed (I quote Justice Alito’s opinion), “The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.” Instead, the dissenters simply start with Roe, and urge that Roe has been and must continue to be followed by the courts.
Notably, the dissenters asserted that it is far healthier to abort a child than to carry it to term and give birth. 75 times healthier, they report at one point. Now, apart from the contestable numeral and conclusion in this proffered “safety fraction”—which happens to leave to the side the 100% death rate of one of the parties implicated, this kind of empirical reliance misses the ethical and anthropological point so severely as to startle.
The oddly empirical means of favorably contrasting killing as against natural life-giving is a vacant, decrepit form of assessment that can make no sense of anything of human dimension, including the lives of the justices who are writing this dissent and who presumably esteem their own existence and work. And surely, they also admire the lives of others distinguished by acts of selfless sacrifice, giving, struggle, and the sheer beauty of human existence in times and circumstances of difficulty.
Moreover, eluding the dissenters’ analysis is the moral and spiritual effects from the murder of innocents upon the perpetrators of that crime as well as on the society that enables it and deems such practice to be a commonplace whose availability is a requirement of justice.
But such is the barbarity present in the dissent. One stark illustration may do here before I move on. The dissenters complained “after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth.” I’ll just let that one hang in the air for a moment.
The dissent also directs certain accusations against the justices in the majority: The dissenters wrote,
The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. . . . Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.
Later they write:
The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.
I’m not sure just what the “rule of law” they reference is intended to describe, but it is not clear to me that the dissenters consider the Constitution itself to be the relevant standard in this context. For as they had written elsewhere:
[O]f course, “people” did not ratify the Fourteenth Amendment. Men did.
They also wrote:
Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
And also this:
[T]he men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens.
So these offerings might help explain the dissenters’ disinterest in legal history and our traditions as being relevant to the question of constitutional interpretation or whether its meaning should be acknowledged in court rulings.
Well, another point of interest here is that the dissenters plainly took for granted and advanced the common feminist idea that maleness is normative of a worthwhile life condition, thus for women to be “equal” and enjoy a worthy existence, they must be like men, which requires a license to kill their unborn children. That is, the femininity of women is a burden from which they must be relieved if they are to have a properly fulfilling life and appropriate social flexibility. Maleness represents the epitome condition of liberty—because men don’t gestate and give birth and thus have no impediments to employment options and other forms of independent adventure.
For the dissenters, women’s fertility is not an occasion for awe and wonder, for elevated assessment of women who have that miraculous power, but rather (as a baseline standard) as a curse and a burden that can only become a blessing privately, if it is subjectively determined to be such by the idiosyncratic viewpoint of the pregnant woman. The purportedly “pro-woman” dissent here treated the distinguishing characteristic of femininity as one to be lamented and avoided, for it distinguishes women from men.
In sum, for the dissenters, full citizenship and an appropriate social standing for women is dependent on, is unattainable apart from, women’s license to abort their children. This stands as the major premise of the dissenting opinion—and reveals that their fundamental hostility is not really to contingent aspects of the American legal system, but to the created order itself.
So the dissenters vacillate as to female identity: First, women are known to be women by their capacity to bear children. But then that identifying feature is deemed separable from her person and identity; a mere biological aspect affirmatively hostile to her personhood. That is, the dissenters cast female identity in disembodied terms, which eliminates the physically feminine from ultimately defining the female.
Much more to be said about the dissent, but we’ll stop there.
The post-Roe world
Finally, going forward in the post-Roe world, there will be contests on all sorts of fronts.
State court lawsuits are likely in jurisdictions deemed up for grabs. For instance, this week Planned Parenthood and others filed a relator action in the Ohio Supreme Court seeking a first-time declaration that abortion is a constitutional right under the Ohio constitution.
Recall that Justice Kavanaugh flagged the question of whether states can prohibit its residents from crossing state lines to obtain an abortion.
The Dobbs dissenters raised these questions: “What about the morning-after pill? IUDs? In vitro fertilization?”—raising these questions because the traditional operation of all of these implicate, in different ways, ending the life of children conceived.
And what of various regulations of the mail system to forbid delivery of pharmaceuticals effecting chemical abortions?
And outside the abortion context: What will be the jurisprudential repercussions of the Dobbs analysis, that limits unwritten constitutional rights to those with a pedigree in our nation’s history and traditions? Will other so-called rights be scaled back or at least confined in scope, as a result of the historical analysis insisted upon in Dobbs?
These and much more will be sorted through in months and years ahead.
