In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed Roe v. Wade and declared that it was returning abortion regulation to the “people and their elected representatives.” The collective freedom of political choice that Dobbs affirmed sounded plenary. The Court said that “the Constitution unequivocally leaves [abortion] for the people.” Dobbs asserted no constitutional right to life for the unborn. The justices did recognize what they called a “legitimate state interest” in “respect for and preservation of prenatal life at all stages of development.” But a state (such as California) could ignore that “interest” and legislate abortion-on-demand. The federal government seems free to “codify” Roe.
A closer look at the Dobbs opinion, however, reveals a different and much more promising story. The Court’s reasoning in support of its reversal of Roe holds together only on grounds that entail substantial constitutional protection for the unborn. In fact, Dobbs puts in place all the building blocks needed in future litigation to deliver to unborn human beings all of the protection that they deserve as “persons” under the Equal Protection Clause.
Dobbs’ overruling of Roe is the end of the beginning of the pro-life struggle in America. It also inaugurates the climactic drive to finally make every child, born and unborn, welcome in life and protected by law.
Dobbs held that “the Constitution does not confer a right to abortion. Roe and Casey are overruled.” Almost fifty years after handing down Roe v. Wade, the Supreme Court finally corrected the biggest mistake it ever made. That is not only my judgment. It is also the confession of the justices, all but expressly. The Court infrequently overrules itself on constitutional issues; a “partial list” in Dobbs included only twenty-six instances since 1938. Rarely in these overruling cases has the Court fessed up as it did in Dobbs, where it said that Roe’s “constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Roe “was more than just wrong. It stood on exceptionally weak ground.” (Dobbs cited approvingly one early critic who asserted that Roe was “not constitutional law and g[ave] almost no sense of an obligation to try to be.”) Almost never does the Court admit that a decision was wrong from the get-go. It did in Dobbs: Roe was “on a collision course with the Constitution from the day it was decided.” It was “egregiously wrong from the start.”
The Dobbs Court cited three constitutional cases that also overruled “important” precedents. None of the three treated the targets of its fire as harshly as Dobbs treated Roe. One involved Jehovah’s Witnesses schoolchildren who refused to salute the American flag. Dobbs noted that the overruling case (West Virginia v. Barnette in 1943) came just three years after the case it reversed (Minersville School Dist. v. Gobitis). Dobbs maintained that “Barnette stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.” Not so: Barnette considered the same basic facts as those presented in Gobitis. But it did so, the Barnette Court said, in light of different constitutional provisions. More importantly, the Court in the interim had revolutionized its civil liberties jurisprudence.
Dobbs also cited West Coast Hotel v. Parrish, decided in 1937. According to Dobbs, it “signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation.” It did indeed. The combined effect of that case and some others was to clear constitutional obstacles blocking important New Deal programs. The practical political effect was seismic. The overruling cases were many. They were much more forgiving of earlier, errant decisions than is Dobbs of Roe. Although I could not swear to it from present memory, none of the overruling cases said that the early twentieth century classically liberal (we would say libertarian) holdings exemplified by Lochner v. New York were wrong the day they were decided.
That leaves one more parallel case cited by Justice Alito: “[t]he infamous decision in Plessy v. Ferguson,” the 1896 case that ratified racial segregation. According to the Dobbs Court, Plessy was (like Roe) “‘egregiously wrong’ on the day it was decided,” and “should have been overruled at the earliest opportunity.” When the Court finally abandoned Plessy nearly six decades later in Brown v. Board of Education, though, the justices spoke of it quite differently than they did of Roe in Dobbs. Brown never said that Plessy was wrong on the day it was decided. It said that the historical evidence about the import of the Fourteenth Amendment for segregated schools was “inconclusive.” Dobbs could hardly have been more certain that the historical case against abortion rights was airtight. Brown’s stated rationale for reversing Plessy, moreover, turned upon the gradual evolution of public education into a uniquely valuable opportunity, as well as upon mid-twentieth-century social scientific evidence of the psychological effects of segregated schools upon black kids’ educational achievement. Dobbs denied that any changes like those underlay its willingness to reverse Roe.
Dobbs establishes that Roe was a singular constitutional catastrophe, an unparalleled disaster of judicial reasoning, the most unalloyed “exercise of raw judicial power”—Byron White’s explosive charge in his Roe dissent and the leitmotif of Dobbs—in the Court’s history.
Dobbs said that, like Plessy, Roe was not only wrong but also “deeply damaging.” The “damage[e]” done by Plessy is obvious: State-mandated segregation victimized black children throughout public schools across America, handicapping them for the rest of their lives. When the Dobbs Court totaled up the butcher’s bill for Roe, however, the stated principal victims were not the sixty million babies aborted since 1973. The “victims” were the constitutional order, our democracy, American politics. The justices said that the Roe Court “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people . . . The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” “Roe fanned into life an issue that has inflamed our national politics,” and “has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Dobbs stated that 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,” quoting Justice Scalia’s opinion in Casey. “That is what the Constitution and the rule of law demand.”
In other words: Roe was bad constitutional law. But it was not necessarily bad policy.
Throughout Dobbs the justices strain to strike the pose of morally neutral umpires on abortion. For example: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” “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.” Emphasizing his moral “neutrality” is clearly the whole point of Justice Kavanaugh’s concurring opinion.
This “neutrality” includes a notable silence about the central constitutional question posed by abortion: Are the unborn “persons” who enjoy a right to life under the Equal Protection Clause? The relentlessly critical Dobbs opinion uttered not a word of reproach for how Harry Blackmun handled this paramount issue in Roe, a question that Blackmun rightly said was dispositive. Texas’s lawyer in Roe argued that “upon conception, we have a human being, a person within the concept of the Constitution.” Blackmun took the referent to be the Due Process Clause, rather than the Equal Protection Clause. The latter is the correct provision, for it imposes upon the state an obligation to protect everyone from private violence, the situation presented by permissive abortion laws. Due Process pertains instead to state acts of violence. Blackmun nonetheless gauged the stakes correctly: “If this suggestion of personhood is established, the appellant’s case . . . collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant [that is, ‘Jane Roe’] conceded as much on reargument.”
To resolve Texas’s challenge, Blackmun turned the Court’s gaze not outward toward the reality of persons but inward to narrower legal reasoning. He decided to treat the question not as one about who really is a person, but rather as about a technical term of art. The effect was to obscure the living human individual in utero in lawyers’ pettifoggery. Blackmun catalogued in Roe the 22 or so usages of the word “person” in the entire Constitution. These included, for example, stipulations about the minimum age for various political offices and about runaway convicts and fugitive slaves. Blackmun then wrote for the Court that, “in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”
Those many usages indeed have no such “applications.” No set of “applications,” however, amounts to a definition of “person.” It amounts instead to a list of things which various subsets of persons can do or can have done to them. Fetuses do not, for example, run for president, and the Constitution implicitly disqualifies them from doing so. But that exclusion does not render them non-persons, any more than it renders anyone who is foreign-born, or who is not yet 35 years old, or who has not lived in America for 14 years, a non-person. For the Constitution stipulates that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
Nor does the fact that fetuses cannot be extradited suggest that they are not “persons” at all. The Constitution’s extradition clause says that a “person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” It does not “apply” to an eight-year-old child any more—or less—than it does to a fetus, because neither kids nor fetuses can be convicted of crimes. Blackmun’s other “applications” similarly have no tendency to define “person” or to establish when any “person” begins. They pertain to prohibitions and permissions for some “persons” but not for others. No one thinks that these others—the foreign-born or children—are not “constitutional persons.”
Even in the awful Dred Scott decision, which touched off the Civil War, the Supreme Court recognized that slaves were “persons,” albeit not “citizens,” who possessed in any event few rights that citizens and other persons were bound to respect. The Court there said that the “only two clauses in the Constitution that point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.” Roe nowhere mentioned the Court’s conclusion five years earlier in Levy v. Louisiana that “illegitimate children are not ‘nonpersons’” because “[t]hey are humans, live, and have their being,” and so “are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” According to these criteria, the unborn are surely “constitutional persons.”
The makers of the Fourteenth Amendment made clear who counted as a “person”: everybody; every member of the human species; every being that (who) is in fact a person—without exception. The meaning of the term “person” in the Fourteenth Amendment is, in other words, transparent for the truth of the matter. The truth is that a person begins at conception. Because every one of us is an embodied rational being, a unity of mind, spirit, and body, it follows that when our bodies began at conception, we—the living bodily beings that you and I are—did. Sometimes apologists for abortion appeal to untutored intuition to refute this truth, asking: “Do you really think that the embryo which is no larger than a period on this page is like us?” The answer is: “Yes, of course, for that is the way we all looked when we were that young.” Even Harry Blackmun started life as a one-cell human embryo.
Does Dobbs’ silence mean that the Court implicitly affirmed Blackmun’s conclusion that the unborn do not count as “constitutional persons”? That is a plausible reading of the opinion and, evidently, how the Court wants it to be read. But the only coherent reading of Dobbs belies this interpretation.
“Personhood” was not put in issue by any party in Dobbs. The Court seems to have thought that it could resolve that case without implicating the matter.
Doing so appealed to the majority justices partly because it was suited to the moral neutrality they strove to maintain. One source of this desired “neutrality” appeal is the majority justices’ preferred way of interpreting the Constitution—“originalism”—and its stated commitment to abstain from basing decisions on “value judgments.” And, as Antonin Scalia famously put it in his Casey opinion, when persons begin cannot be determined as a “legal” matter, because it was a “value judgment.”
Whatever could be said in favor of this value-aversion when it comes to other questions in other cases, it is an unwarranted hesitation in Dobbs. Judging whether procuring an abortion is morally right or wrong involves value judgments. Describing an abortion as any act which intentionally or unjustifiably causes the death of an unborn human individual does not.
For one thing, ascertaining when new members of the human species begin is not a value judgment. Lawmakers in most states and in Congress made precisely these sorts of judgments when they enacted the many feticide laws now in force. The federal Unborn Victims of Violence Act, signed into law by President Bush in 2004, is typical of them. (Full disclosure: I testified in Congress in favor of the Act.) It stipulates that anyone who engages in certain prohibited conduct “and thereby causes the death of . . . a child, who is in utero at the time the conduct takes place, is guilty of a separate offense” punishable just as if the victim were not in the womb but walking around like the child’s mother, or father, or aunt or uncle or neighbor. Who is this equal (so to speak) victim? “[I]n this section” of the UVVA, “the term ‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”
Lower courts have not hesitated to affirm the many convictions obtained under this and cognate state laws. Nor should they hesitate. The question about when people begin is no more mysterious or complex or “unjudicial” than everyday questions that courts routinely answer, questions (and answers) that similarly require judges to master a certain body of scientific information as a predicate for making moral-metaphysical judgments of great consequence. Among these important everyday matters are insanity, mental incompetence, voluntariness, intention, whether persons have free choice sufficient to hold them criminally responsible, and the question of when someone dies. Courts are presently faced with an important question about mind-spirit-body unity in the many contexts where “transgenderism” is at issue. The common question in those cases is whether my male body (for example) is constitutive of who I (the person, Gerry Bradley) really am. Or am I really a mental-emotional-psychological reality, a free-floating spirit that happens to be housed in this body, a body that may or may not correspond biologically to who I really am?
The standing conservative reticence about “value judgments” cannot in any event fully explain Dobbs’ silence about constitutional “personhood” due to invaluable new “originalist” research presented to the Court by scholarly amici. A masterful brief by Robert George and John Finnis supposed that (in Finnis’ description of it) the “truth that human beings are persons is not of primary concern to the Supreme Court.” These scholars compiled exhaustive historical evidence that “proves prohibitions of elective abortions constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.” For “among the legally informed public of the time, the meaning of ‘any person’—in a provision constitutionalizing the equal basic rights of persons—plainly encompassed unborn human beings.” The Dobbs majority could have—and, in my judgment, should have—counted the unborn as constitutional “persons” on these originalist grounds. But neither the majority opinion nor the two concurrences mentioned this historical argument.
Any explanation for the Court’s silence about “personhood” must also include a place for felt political necessity, namely, the justices’ belief that it would shock our polity to go from Roe’s radical permissiveness to equal protection of unborn persons. In footnote 7 of his dissent, Justice Breyer observed that the “majority takes pride in not expressing a view ‘about the status of the fetus.’” Then he wrote:
The majority had a choice of two different ways to overrule Roe and Casey. It could claim that those cases underrated the State’s interest in fetal life. Or it could claim that they overrated a woman’s constitutional liberty interest in choosing an abortion. (Or both.) The majority here rejects the first path, and we can see why. Taking that route would have prevented the majority from claiming that it means only to leave this issue to the democratic process—that it does not have a dog in the fight. [citation omitted] And indeed, doing so might have suggested a revolutionary proposition: that the fetus is itself a constitutionally protected “person,” such that an abortion ban is constitutionally mandated. The majority therefore chooses the second path, arguing that the Fourteenth Amendment does not conceive of the abortion decision as implicating liberty, because the law in the 19th century gave that choice no protection.
Breyer—joined by Justices Kagan and Sotomayor—accurately describes the basic structure of the majority opinion. Let’s say that the majority had to make (following Breyer’s lead) a key “strategic choice”: inflate the fetus or deflate the right to abortion. The problem is that the choice is unavailable:
The second “path” is not an alternative to the first. Successfully traversing the second instead depends upon traveling the first. One cannot downgrade the asserted abortion right without upgrading the status of the fetus. In fact, the Dobbs opinion collapses unless the Court picks a “dog in the fight,” even at the risk of “suggest[ing]” that the “fetus is itself a constitutionally protected ‘person.’”
Let me explain.
The Dobbs majority faced two bumps on Breyer’s “second path.” One required the Court to cogently distinguish the putative “right to abortion” from the “privacy” precedents to which Roe fastened it and in which the Dobbs dissenters would find it. Chief among these were Griswold and Eisenstadt, the contraceptives cases. The other bump, requiring the Dobbs Court to determine if a right not mentioned in the Constitution deserves protection as if it is in fact mentioned, confronted the Dobbs Court with the question about how to identify such “unenumerated” rights. Here Dobbs followed the analytical framework the Court established in the 1997 assisted suicide case Washington v. Glucksberg. The Court needed to show that no right to abortion could be found in our history and traditions, especially around the time that the Fourteenth Amendment was ratified. Leaving the “state’s interest in fetal life” where it found it won’t provide the needed lift. Getting over these two obstacles requires—in Breyer’s phrasing of it—valuing the “state’s interest in fetal life” higher than the Dobbs Court was willing to explicitly “rate” it.
First, the privacy precedents. Dobbs said that “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage.” But, according to Dobbs, “[w]hat sharply distinguishes the abortion right” from these other cases is that abortion “destroys what those decisions call ‘potential life.’” Again: “what is distinctive about abortion [is] its effect on what Roe termed ‘potential life.’”
“Potential[ity of] life” is a touchstone of the Dobbs opinion. Its prominence reflects the Court’s studied effort to avoid committing itself not only to a moral evaluation of abortion, but also to a description of what makes this “profound moral question” profound. The Dobbs Court often observed that Americans past and present held and hold that abortion kills an unborn human being. Dobbs’ 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.” But reporting what some people believe is to state a fact about them. It establishes nothing about either what abortion really does or even what the justices in Dobbs think it does. The Court occasionally makes one of these reports its own. But it does so only where the report describes abortion as homicidal in the alternative. For example: Abortion is “fundamentally different,” according to Dobbs, because “as both Roe and Casey acknowledged, . . . it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
The Dobbs Court explicitly asserts in its own voice no more than Roe did: Abortions destroy “prenatal” or “fetal” life. Given the context, one could confidently insert the missing word “human”; thus, “prenatal human life.” But even this is not yet the truth that a distinct, whole, living, individual human being is present “prenatally.” “Fetus” and “prenatal life” are distinguished from the rest of us adjectivally, as biological matter akin perhaps to that of which you and I are composed but still not anything like the mind-spirit-body unity that a human person with rights is.
There is surely no such thing as “potential life,” at least for anyone who does not subscribe to Aristotle’s view, adopted by Aquinas, that animation with a rational soul occurs six weeks after conception, so that before that point there is a living organism that is only potentially a human being. This speculation has been utterly disproved by modern science. Nor was there any such thing as “potential life” in the law of abortion at around the time the Fourteenth Amendment was adopted up to 1973. As a matter of fact, Harry Blackmun invented “potential life” to avoid facing the hard questions presented by his plan to legalize abortion. Texas argued in Roe that, apart from the Fourteenth Amendment, it had a compelling interest in saving the lives of unborn human beings from abortion. Blackmun replied that “a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.” Texas never used the term “potential life.”
It is therefore most unfortunate that Dobbs doubled down on this bogus concept when pressed by the dissenters’ insistence that Roe cannot be distinguished from “Griswold, Eisenstadt, Lawrence, and Obergefell.” Justice Breyer concluded footnote 7 by emphasizing his contraception-based criticism. “The trouble is that the chosen path—which is, again, the solitary rationale for the Court’s decision—provides no way to distinguish between the right to choose an abortion and a range of other rights, including contraception.” The Court replied that “we have stated unequivocally that ‘[n]nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” Why not? “[C]ontraception and same-sex relationships are inherently different” because abortion “uniquely involves what Roe and Casey termed ‘potential life.’” This reply is not only ineffective. It is unintelligible. What could it possibly mean to say that abortion involves, in a singular way (“uniquely”), the imaginary construct of somebody else?
“Potential life” does not correspond to anything in the real world. To the extent that the concept can be brought into contact with the argument in Dobbs, it favors the dissenters. “Potential life” does not describe the embryo or the fetus and so has nothing to do with abortion. It is, however, an apt term integral to a sound understanding of contraception and the morality of it. Contraception does not “destroy” anybody already in existence, as does abortion. But it does involve envisioning a “potential” child—one who might come to be as a result of the sexual intercourse one has chosen—and then acting so as to make that “potential” human individual not come to be. It is, perhaps, a notional “destruction” of what could usefully be termed a “potential [human] life.” Contraception involves the intention that someone who could later exist, not.
The majority justices’ wariness about choosing a “dog in the fight” trips them on the other bump along Breyer’s path. The affirmation that abortion kills an unborn human child is necessary to the Court’s proof that abortion is not an unenumerated constitutional right. The Court denies that “a right to abortion” is (here following Glucksberg) “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.” Why not? It will not do to say, as a superficial reading of Alito’s opinion might suggest the Court is saying, that the issue can be resolved by playing a word-match game: Roe was about a “right to abortion” and there were many laws long ago that banned “abortion.” The Glucksberg analysis is not about semantics or nomenclature. It is rather about the historical treatment of some specific human act. The question is whether a right to do some particular act is, or is not, “deeply rooted in this Nation’s history and tradition.”
The specific human act at issue in Dobbs has to be the deliberate killing of an unborn human being. Neither “potential life” nor an indeterminate term such as “prenatal life” will do. That is because the historical evidence which the Court musters to refute the putative “right to abortion” is about a more inflated (if you will) definition of abortion. This evidence and not the Court’s own lexicon supplies the meaning of that “abortion” which is the subject of the Court’s “critical question whether the Constitution, properly understood, confers a right to abortion.”
The core of the Court’s case for a negative answer to the “critical question” is this: “[b]y 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.” The Court repeats in almost these exact words this conclusion a half-dozen times in Dobbs. It is indispensable to the Court’s answer to the Glucksberg question. The voluminous Dobbs Appendix catalogs that decisive body of statutory laws. Only a handful of those fifty-one laws actually uses the word “abortion.” Most of that handful pair the term “abortion” in the disjunctive with “miscarriage”: Thus, it is unlawful to “procure a miscarriage or abortion.” Even the statutes that use the term “abortion” do not take its meaning for granted. They do not presuppose some ambient canonical definition. The statutes do not leave the identity or status of abortion’s victims in haze. The specifics across this entire body of laws are remarkably consistent, not least because many jurisdictions copied the earlier anti-abortion laws of others. These laws do not outlaw “abortion,” save for the very specific human act which some of them name “abortion.” It is the substance and not the name that matters.
That “abortion” which is contended for in Dobbs is negated by laws, the composite common core of which makes 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 it is done to save the life of the woman. This is what no one has a constitutional right to do. This is what it means to conclude, as the Dobbs Court does, that “there is no constitutional right to obtain an abortion.” This is the pertinent meaning of “abortion” in Dobbs.
Insofar as one imagines that “abortion” extinguishes something called “potential life,” nothing in Dobbs tends to show that there is no constitutional right to obtain one. Unless Dobbs affirms that in an abortion a living human individual is deliberately killed, the whole opinion fails to launch.
Dobbs promises to sustain against constitutional objection almost every restriction on abortion up to and including near total prohibitions. (It is almost certain that a life-of-the-mother exception is constitutionally required.) For this great end the pro-life movement has worked for nearly five decades. Several passages in Dobbs hold out a corresponding symmetrical permission, up to and including abortion-on-demand, as if California, for example, is just as free to permit abortion as Mississippi, for example, is to restrict it. Consider this passage: “Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.”
Is this apparent symmetry supported by a coherent reading of the whole opinion?
The key doctrinal holding of Dobbs (with internal citations omitted) is this:
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. These legitimate interests include 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.
Nothing in Dobbs suggests that by “maternal health and safety” the majority means anything like a requirement to permit abortions thought to serve “health” in the unbounded sense used in Doe v. Bolton, which encompassed all aspects of a woman’s well-being as she understands it. Thus, these are all bases for restricting abortion access or for prohibiting it entirely. The Court articulates its holding in terms of state authority to “regulat[e] or prohibit abortion,” not expressly in terms of permission. To the obvious objection that permitting is simply the other side of the coin of restricting, the answer is: yes, in a way. But that does not mean that a challenge to an abortion restriction by, say, an abortion clinic should be subject to the same level of judicial scrutiny as a challenge to a permissive abortion law by, say, the husband/father of a child whose wife/mother seeks an abortion.
In any event: Would a permissive abortion law like, say, the Roe/Casey regime uprooted by Dobbs, or California’s existing radically permissive regulations, or the Biden Administration’s promised “codification” of Roe, pass constitutional muster under the “rational basis” test? This is in critical part to ask: Is it “rational” to judge that there is a substantial change in the moral status and worth of the unborn child, somewhere between the formation of what biology indisputably establishes is a unique human individual at the moment of fertilization and the birth of that individual months later?
It is an organizing moral norm in our legal system that any human being who has been born is thereby counted among the class of “persons” who are, by belonging to that class, equally protected by the laws against homicide. Intentionally killing a one-day-old baby is murder just like killing an athlete in his or her prime is murder, and both are murders just like killing an addled pensioner. Again: What is the “rational basis” for concluding that an unborn human being simply does not count under a state’s homicide laws, when that same human being would be fully protected by them once emerged from the womb?
Is it rational to so judge, especially when the truth about when persons begin has become more evident and therefore less reasonably deniable since 1973? Prenatal research, sonograms, and DNA evidence of how the embryo carries within it all the information needed to direct the tiny person’s growth throughout life show conclusively the existential continuity of everyone from fertilization to death. These biological and other scientific facts suggest strongly that for each one of us, one began as a person in a moral sense when one’s bodily life as a distinct organism began.
The Dobbs Court sets out the main points of the argument for holding that California (for example) has no such rational basis. To be sure, the Court here is not working itself up to asserting (much less holding) that the unborn count as constitutional “persons.” Its purpose is to refute pro-choice arguments that there are reasonable distinctions to be made during the course of pregnancy in assaying the state’s interests in protecting (what is too often called) “potential life.” Even so: Dobbs’ rhetorical questions could be easily turned around into assertions. Then they would form the premises of a compelling argument that the unborn are, from the moment of conception, persons for the same reasons and due to the same characteristics that make you and me persons, too.
First, Dobbs 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 like “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. And 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 Supreme Court deployed in Dobbs what amounts to a no-substantial-change-from-the-moment-of-fertilization line of argument against making any prenatal distinction among unborn children. “The definition of a ‘viable’ fetus is one that is capable of surviving outside the womb, but 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’?” To this cogent question, the Dobbs Court replied: “Roe did not say, and no explanation is apparent.” “Viability” is, the Court concluded, an “arbitrary line.”
The Court pivoted on this argument when it turned to the rationality of distinctions between pre- and post-natal human beings. 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.’ Among the characteristics that have been offered as essential attributes of ‘personhood’ are sentience, self-awareness, the ability to reason, or some combination thereof.” But “[b]y this logic,” Justice Alito wrote for 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.’”
Here the majority justices walk wittingly right up to Breyer’s stated “risk” of “suggest[ing the] revolutionary proposition,” that “the fetus is itself a constitutionally protected ‘person,’ such that an abortion ban is constitutionally mandated.” If abortion kills an unborn human individual who cannot be rationally distinguished as a homicide victim from the victim of infanticide (for example), then the Constitution requires that the child in utero be protected by law just as is the infant.
It might be technically accurate to state (as does Justice Alito) that the Dobbs opinion “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” The Court’s opinion, however, entails the “view” that the unborn count as if they are constitutional persons, at least where the protection of laws against being killed are at issue. This is not to say that the majority justices presently intend to strike down permissive abortion laws as irrational, although one or more might. It is that the law they have made in Dobbs, and the essential reasons for that holding, put them on a path which leads to the practical equivalent of constitutional personhood for the unborn. Even if these justices built better than they knew, they built it just the same.