[Gerard V. Bradley is professor of law at the University of Notre Dame, and the Foundation’s Great Defender of Life in 2022. This article first appeared in the August-September issue of First Things magazine and is reprinted here with permission.]
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” It is now one year, and one full election cycle, since the Supreme Court closed its opinion in Dobbs v. Jackson Women’s Health Organization with those words. That is time enough to gauge how the “people and their elected representatives” have used the authority “return[ed]” to them.
There have been six post-Dobbs popular referenda on abortion. All were setbacks for life. The sites of these defeats included red states such as Kansas, Kentucky, and Montana, as well as purplish Michigan. (The others were California and Vermont. No surprises there.)
It is not just the people who have gone wobbly on abortion. Republican politicians were all saber and musket when Roe put the substance of abortion liberty beyond political reach. Now it’s different. Lindsey Graham introduced in the Senate last September a bill that would nationally prohibit abortions after fifteen weeks of gestation, except in situations involving rape, incest, or risks to the life and physical health of the mother. This was hardly a drastic proposal: Almost 95 percent of abortions take place by fifteen weeks, and Graham’s bill permitted some abortions thereafter. His Senate colleagues nonetheless had no stomach for the fight. From Leader Mitch McConnell on down, Republican Senators took the view that abortion was for the states to worry about. They preferred to run against inflation and an underperforming economy. Pro-lifers are now working hard to gain commitments from Republican presidential hopefuls to support a national ban modeled after Graham’s bill. We shall see how that goes.
Republican legislators are not the only problem. There is another cadre of public officials now driving the abortion express. High courts in blood-red states have struck down restrictive abortion laws; South Carolina and Montana are two examples. High courts in Wyoming, Florida, and Indiana are sitting on lower-court decisions blocking enforcement of those states’ restrictive abortion laws. We shall see what the top judges in those states do.
What grounds have these state judges relied on? An Indiana trial judge cited Article 1 of the 1855 state constitution, which says that “all people are created equal . . . [and] are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” Sounds good. But then she held that “forcing pregnancy and childbirth upon thousands of Hoosiers” prevented them from enjoying the Creator’s gift to them.
This imaginative jurist is a Republican.
The lead opinion for the South Carolina Supreme Court found a woman’s right to abortion in “due process provisions that trace their development back to the Magna Carta,” the charter of basic rights that King John and his unruly barons signed at Runnymede Meadow on 15 June 1215. Who knew that the path from Runnymede to Roe was so straight and sure?
It’s time to take stock. Let’s define an abortion law as nearly just when there is no legal elective abortion. The only permitted abortions would be those performed to save the life of the mother or alleviate a grave threat to her physical health, or in cases of pregnancy resulting from rape or incest.
Only twelve states have nearly just abortion laws that they can enforce: Alabama, Arkansas, Idaho, Kentucky, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. Wisconsin’s law will not long survive the April election of Janet Protasiewicz to the state Supreme Court. In a pre-election debate, Protasiewicz advertised her personal support for abortion rights, as well as her backing by pro-abortion rights groups. Lawsuits challenging other states’ nearly just laws are pending. In sum: About 22 percent of the U.S. population lives in a state with nearly just abortion laws. That includes Wisconsin.
The Biden administration is devoted to bringing that percentage down to zero. More than half the abortions performed annually in America now are “medical”— that is, non-surgical, accomplished by the ingestion of Mifepristone and Misoprostol. The Food and Drug Administration has approved the abortion-drug cocktail as “safe and effective,” and it has done so on the most user-friendly terms. Proabortion groups maintain in lawsuits across the country that these FDA protocols preempt all restrictive state laws. They seek nationwide mail-order abortion on demand, notwithstanding a century-and-a-half-old federal law, the Comstock Act, that prohibits precisely such mailings. Some pro-life doctors obtained on April 7 an injunction against this practice from Texas federal trial judge Matthew Kacsmaryk. The main part of his ruling has been stayed pending appeal.
The months since Dobbs have revealed a much darker pro-abortion movement. Abortion is no longer a regrettable necessity, a painful but sometimes unavoidable way out for women in desperate circumstances. It is now about empowerment. In abortion proponents’ rhetoric, in their “expert” studies of abortion pills, in their legal proposals, in their judicial opinions, the child in the womb is now utterly erased. He or she is invisible, not only worth nothing but not worth noticing: “pregnancy tissue.” These post-Dobbs developments are worse than pro-lifers expected, and far worse than most hoped. They cannot but be sobering to pro-life Americans. There are no scientific facts waiting to be discovered, no new legal arguments to make, no more demonstrations of care and compassion for mother and child that will make a real difference in the fight for unborn lives. I do not know whether the pro-abortion population of America is growing. It seems not to be declining, and it is more militant, and more incorrigible, than ever.
What, then, is to be done? We should keep trying to reach the hearts and minds of opponents, of course. At the same time, justice for the unborn calls for the use of whatever lawful power is at hand to save their lives. Is there some paramount legal authority that could be put to this use?
Congress possesses ample constitutional authority under Section Five of the Fourteenth Amendment to “enforce, by appropriate legislation” the Section One guarantee that no state “deny to any person within its jurisdiction the equal protection of the laws” against, for example, homicide. Maybe soon there will be a Republican Congress. But as the fate of Lindsay Graham’s very weak protections of the unborn indicates, it is not likely to be a pro-life one.
The people could of course amend the Constitution to make equal protection of the unborn child’s right not to be killed more explicit than it already is in the Fourteenth Amendment. But given the strength of consensus, in both Congress and the states, required for amendments to the Constitution, this course has zero chance of success. That leaves one more paramount authority to consider: the Supreme Court. Dobbs overturned Roe, and thank God it did. But does it do more? Is Dobbs a pro-life decision, one that establishes the basis of a legal strategy for protecting the unborn? The answer is “yes.” This is a fact that anyone concerned to defend the sanctity of life must understand.
The Court’s majority opinion includes many passages strongly suggesting that it is not a pro-life decision. For example:
In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
And (quoting Justice Scalia’s Casey opinion):
The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.
In his concurring opinion, Justice Brett Kavanaugh, the necessary fifth vote to the majority in Dobbs, used the word “neutral” thirteen times, invariably indicating that the Constitution was neither pro-life nor pro-abortion.
Indeed, if one thinks that our constitutional regime is based on essays comprising legal and constitutional history seasoned with elements of a primer on democratic theory, the Dobbs opinion often sounds as though it did no more than release abortion regulation from federal judicial captivity. On this reading, the Court is basically done with abortion. The rest of the story is for the “people and their elected representatives” to write.
But Dobbs is not an essay. It is a judicial opinion, and proper understanding requires it to be read in accord with established canons of legal construction. It takes a lawyer’s critical analysis, not an essayist’s curiosity, to identify what that law is.
One clear canon of interpretation is that what Kavanaugh said in concurrence does not matter. Kavanaugh’s concurrence is not the law established in Dobbs or any part of it. Sometimes, when a fifth justice’s vote is needed to form a majority, that justice does not join in his or her colleagues’ opinion and writes separately (in an opinion “concurring in the judgment”) about what the law is. In that situation, the grounds of the concurrence shape the law of the case. That would have been true in Dobbs if Kavanaugh had dissented. In that hypothetical situation, Chief Justice Roberts’s vote would have been the fifth and deciding one. Then his limited constitutional right to abortion, one that (in his words) gave the pregnant woman a “reasonable opportunity” to secure an abortion, would have been the law of the case.
Brett Kavanaugh joined the Court’s opinion in full, signing it just as the other four justices in the majority did. The law of Dobbs is therefore in the majority opinion.
Another ground rule is that, although the law made in Dobbs is found in the majority opinion, not all of the majority opinion is law. Any judicial decision’s “holding”—the law made therein—comprises the result and those portions of the opinion necessary to that result. A judicial opinion typically contains much else besides its holding—all sorts of observations, factual suppositions, footnotes, tangents, musings, and polemical exchanges with dissenters or concurring judges (or both, in the case of Dobbs). Dobbs traffics heavily in the descriptive and predictive: Voters may believe a certain thing and act in a certain way; this or that is the case or is likely to happen. What really matters, though, is the prescriptive: What do public authorities have the constitutional authority to do?
The Dobbs result is that “the judgment of the Fifth Circuit” invalidating Mississippi’s prohibition of post-fifteen-week abortions “is reversed.” Its holding includes two intertwined yet distinguishable major propositions: Roe and Casey are overruled, and, in Dobbs’s words: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” A third leg of the holding is more operational: Going forward, abortion regulations will be subject to the Court’s familiar “rational basis” test. The holding of Dobbs also includes any premise necessary to support these three propositions. Finally, in an overruling case such as Dobbs, not only the earlier holding—here, chiefly Roe— but also any premise essential to Roe is deprived of authoritative support.
These rules about concurrences and holdings are not technicalities, even though deploying them sometimes requires educated legal reasoning. They are pillars of sound reasoning about judge-made law. Learning these rules is a staple of first-year law school instruction. Mastering them is essential to practicing law. Put simply, the decisive question is not whether Dobbs is a pro-life opinion. It is whether Dobbs is a pro-life holding.
It is, in the following five ways.
First, Dobbs holds that a state law prohibiting all abortions is constitutional. This is no more than another expression of the second main holding, namely, that there is no right to an abortion anywhere in the Constitution. No woman has a constitutional right to abortion.
Dobbs contemplates, even if it does not quite hold, that a woman whose life is at stake could secure an “abortion.” But this exception need not be, and should not be, understood as a right to an abortion. It is better understood as a permission of medical procedures undertaken with the intention of saving a life, albeit with the anticipated but unintended effect of the unborn child’s death. This “double-effect” feature makes lifesaving “abortion” a reasonable defense of the mother’s life.
Second, Dobbs does not hold that states may permit abortion, even though several statements in it say or imply as much. Nothing in the result of Dobbs or in its three main propositional holdings or in anything essential to those holdings presupposes or implies that the states may do as they wish. The reasoning that leads to the holding that there is no constitutional right to abortion does not rely on premises that require approving abortion permissions.
Late in its opinion, the Dobbs Court listed the “legitimate state interests” that justify laws that prohibit or regulate abortion. None of them is a reason for permitting abortion. The six are: “respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.” “Maternal health and safety” is here a reference to the many state laws conditioning abortion access (informed consent requirements, waiting periods, and the like) for the sake of the pregnant woman’s health. Dobbs does not identify any “legitimate state interest” justifying support of abortion access.
Third, in Roe v. Wade, the Texas court maintained that human life begins at conception and that the state therefore may ban abortion throughout pregnancy for the sake of that compelling value. In his controlling opinion for Roe, Justice Blackmun asserted:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
In reversing Roe, Dobbs necessarily reverses this claim, for Blackmun’s agnosticism on when life begins was essential to Roe’s abortion-liberty holding. To be sure, Dobbs is conspicuously coy about the occupant of a pregnant woman’s womb. The opinion’s opening paragraph is illustrative: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life.” And later: “[A]s both Roe and Casey acknowledged, [abortion] destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” Here and elsewhere, the Dobbs Court reports what others say about pregnancy without asserting anything in its own voice. The Court repeatedly deploys the imaginary construct of “potential life.” According to Dobbs, “[w]hat sharply distinguishes the abortion right” from other privacy cases is that abortion “destroys what those decisions call ‘potential life’”; likewise, “what is distinctive about abortion” is “its effect on what Roe termed ‘potential life.’”
Throughout the majority opinion, the Court says in its voice no more than that abortions destroy “prenatal” or “fetal” life. Given the context, one could confidently insert the missing word “human” into the phrase—thus, “prenatal human life.” This is not yet to assert that from the moment of conception a whole living human individual comes to be. And yet Dobbs holds precisely that, because it requires it as a premise for the holding.
The cogency of the argument in Dobbs requires the recognition that a whole individual human being begins at conception. Dobbs overrules Roe and declares that there is no constitutional right to abortion. To this end, the majority needed to execute two tasks successfully.
The first was to supply a compelling answer to the historical question of whether a right to abortion could be found in our history and tradition, especially around 1868 when the Fourteenth Amendment was ratified. (This test for identifying the existence of judicially enforceable “unenumerated” constitutional rights such as a right to abortion was established in Washington v. Glucksberg .) The core of the Court’s case for a negative answer is this: “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” Dobbs recited this conclusion a half-dozen times. The voluminous Dobbs Appendix catalogues the decisive body of older statutes, vindicating the Court’s claim that no right to abortion can be found in “history and tradition.”
Moreover, the old statutes do not leave the identity or status of abortion victims in a haze. These laws outlaw a very specific act, which the laws explicitly describe. The claim that there ever existed an “abortion” liberty (nineteenth-century laws do not presuppose that “abortion” is a self-evident term and use older concepts such as to “cause” or “obtain” a miscarriage) is negated—the majority insists—by the widespread existence of laws that make it a crime to “administer” to “any pregnant woman” (“with child”) anything whatsoever with the “intent to procure the miscarriage of any such woman” (or to “destroy such child”), unless to save the life of the woman.
The concept and term “potential life” are utterly alien to this corpus. Insofar as one could imagine that “abortion” extinguishes something called “potential life,” nothing in Dobbs tends to deny that there is a constitutional right to obtain one. Unless Dobbs affirms that in an abortion a living human individual is deliberately killed, the Court flunks its Glucksberg test. And since it claims to pass that test, it must endorse the premise that abortion terminates a life, full stop.
The Court’s second task was made necessary by the first. The Dobbs dissenters saw immediately that the majority’s answer to the Glucksberg test threatened not just abortion rights, but many other Court-minted “privacy” rights, such as to contraception, sodomy, and same-sex civil marriage, none of which rights are rooted in our history and tradition. The Dobbs majority took on board the dissenters’ premise that these other “rights” should remain untouched: “We have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” (In a separate opinion Justice Thomas indicated a certain willingness to reconsider them.)
What reason did the majority give for distinguishing Roe from other decisions that rest on the purported right to privacy? “[C]ontraception and same-sex relationships are inherently different,” they argued, because abortion “uniquely involves what Roe and Casey termed ‘potential life.’”
Here again, and in spite of the repeated verbiage, we find that Dobbs rests on the premise that life begins at conception. One might appeal to Aristotle to supply an intelligible account of “potential life.” He held that the animation of the body with a rational soul occurs six weeks after conception, so that before that point some sort of living organism exists that is only potentially a human being. But there is no rational basis to accept this view, which is at odds with modern science. Everything we know about human biology and reproduction tells us that it is false. Moreover, there existed no concept of “potential life” in the law of abortion from the time the Fourteenth Amendment was adopted until 1973. Harry Blackmun invented the term after he decided not to say when life begins.
Although the zygote and then embryo could fairly be described as almost all “potential” and very little actuality, there is nothing “potential” about the embryo’s being alive. “Potential life” therefore does not describe the embryo or the fetus and so has nothing to do with abortion. It is, however, a useful term for understanding contraception and its moral status. Contraception does not destroy any human being already in existence, as abortion does. But it involves envisioning a “potential” child and then acting so as to prevent that “potential” child from coming to be. Contraception is the morally significant choice to “destroy” what could usefully be termed a “potential [human] life,” intending that someone who could later exist, not exist.
In other words, if Dobbs rests on the concept of “potential life,” then it cannot distinguish abortion from contraception. Yet the majority insists on the distinction. It is essential to the Dobbs holding that abortion is “unique.” Therefore, it cannot involve “potential life.” For Dobbs to be read coherently, we must adopt the premise that abortion destroys a whole living human individual.
Dobbs is a pro-life holding in a fourth way. Constitutional “personhood” is doomsday for abortion. In Roe, Harry Blackmun conceded that, if a “person” within the meaning of the Fourteenth Amendment begins at conception, then the constitutional case for abortion “collapses”—his word. “For [then] the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
Roe infamously held that the unborn do not count as “persons.” That constitutional term, Blackmun wrote, has “application only postnatally.” He tried to establish this conclusion—the hinge on which the whole constitutional debate about abortion turns—by narrow legal reasoning about texts and precedents. When it sought the meaning of the Fourteenth Amendment guarantee of legal protection to “any person,” the Roe Court never looked at reality—that is, the truth of the matter about when our lives actually begin.
Dobbs reversed Roe and thereby overruled any part of that opinion that was essential to its holding. The proposition that the unborn are not constitutional persons was absolutely necessary, as Blackmun’s concession makes clear. No other Supreme Court case (except those following the now canceled Roe) has held that the unborn are not “persons.” With Dobbs, the decisive constitutional question is open for the first time in fifty years.
And so we must ask: On what grounds could public authority maintain that a whole, living human individual is not a person? It is axiomatic in our constitutional order that everyone is equally a “person” with the same right to life at and after the moment of birth. What then could render that same human individual a non-person minutes or days or months earlier? These questions are not merely rhetorical, but suggest a focal point for future litigation.
Dobbs is a pro-life holding in a fifth and final way. Its most practical passage is this: “We must now decide what standard will govern if state abortion regulations undergo constitutional challenge. A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’ It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
Here the Court doubtless had in view laws restricting abortion. “Rational basis” signals unmistakably that the Court will uphold any such law, up to and including total prohibitions. But this “rational basis” standard would also apply to abortion permissions, for the simple reason that it applies to every law, and the quality of being non-arbitrary is the baseline test of constitutional reasonableness.
In today’s culture, a “rational basis” for liberal abortion laws would be the promotion of women’s autonomy, equality, and empowerment. But nothing about these interests has any tendency to establish the precondition of the constitutionality of those laws, namely, that the unborn child is not a person. After all, as Blackmun wrote in Roe, if the unborn child is a person, “the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” Nothing about anyone’s empowerment, freedom, interests, desires, or needs affects the status of another human being as a rights-bearer, as someone whose well-being must be respected.
Dobbs got this exactly right. The Court recognized that whatever it is that gives anyone a right to life, it must be something about that individual and not about some external circumstance, such as “viability.” According to Dobbs, “[t]he most obvious problem with any [contrary] argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time.” This is a problem, because “if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country?”
The Court went on to ask, if “viability” means the ability to survive outside the womb, “why is this the point at which the State’s interest becomes compelling? If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’ why isn’t that interest ‘equally compelling before viability’?” Dobbs reported that “Roe did not say, and no explanation is apparent.” “Viability” is, the Court concluded, an “arbitrary line.”
The Court made a further move. “This arbitrary line,” the Court wrote, “has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. Some have argued that a fetus should not be entitled to legal protection until it acquires the characteristics that they regard as defining what it means to be a ‘person.’” Characteristics such as “sentience, self-awareness, the ability to reason, or some combination thereof” are suggested as “essential attributes of ‘personhood.’” “By this logic,” wrote the majority, “it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as ‘persons.’”
We need to take in the revolutionary import of these passages. Dobbs does not treat the question of fetal personhood as a game of mental gymnastics. Much less does Dobbs regard it as a question about legal fictions or textual usage or precedent, or even about history. The Dobbs Court repudiated fifty years of Supreme Court misdirection and thus tragedy, by recognizing that those “persons” entitled to equal protection of the laws include everyone who really is a person. And the reasoning in Dobbs suggests that there exists no rational basis for treating those in the womb as anything other than persons.
Dobbs has opened the way for pro-life litigation. Although it does not connect those dots, the majority has supplied all the elements needed for arguments showing that permissive abortion laws, because they arbitrarily treat the fetus as less than a person, lack a rational basis. Every whole living human individual is, by dint of that fact alone, a human person, and thus cannot be treated arbitrarily by any law, especially not by laws that permit that person’s destruction.
Let us not be distracted by the conventional account of what Dobbs accomplished by overturning Roe—the notion that it merely returned the issue to the people and their representatives. This “power to the people” narrative distracts from what the case actually holds. Many on the pro-life movement’s legal side are prone to this distraction. They have long regarded overturning Roe as the terminal point for constitutional law reform. From there on, democracy (so to speak) was to ensure equal protection for everyone—or so we were told. Whether this is true as a matter of normative democratic theory is doubtful. Whether it is true of our Constitution is the subject of this article.
The conservative legal movement is hesitant to take up the cause of life as a positive objective beyond the overturning of Roe as “judge-made law.” It is wary of having the Court make what it regards as “value judgments.” And it is averse to the justices’ continuing involvement in this part of the culture war. But whether or not the child in utero is substantially identical with the newborn infant is not a “value judgment.” The logic of Dobbs suggests that it is a question admitting of a rational answer. And how far the Court should or should not involve itself in the culture war is not a matter of opinion. It depends on what the Constitution, honestly and fearlessly interpreted, requires.