The goal the pro-life movement has worked and prayed for over the last half-century has finally been accomplished. The Supreme Court has finally overturned Roe v. Wade and Planned Parenthood v. Casey.
Here is the money quote from the majority opinion, authored by Justice Samuel Alito: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Thanks to Dobbs, courts will no longer hold laws protecting unborn children to the arbitrary and subjective “undue burden” rule of Casey. Courts will instead be considering whether laws have any rational relationship to a legitimate government interest. That’s the “rational basis” test, which is the most deferential to legislatures.
Many states have recently passed laws that give broad protection to unborn babies, and others will undoubtedly follow. Some states still have pre-Roe laws on the books that may spring back into life. Under Dobbs, the tables have been turned, and it will be much more difficult for pro-abortion advocates to convince courts that those laws lack any conceivable “rational basis.”
We can immediately see the likely result of Dobbs by looking at two recent Supreme Court cases that struck down health and safety regulations for abortion clinics, June Medical Services L.L.C. v. Russo (2020) and Whole Women’s Health v. Hellerstedt (2016). Both laws were struck down under the Roe/Casey “undue burden” standard, in decisions where the Court basically second-guessed every aspect of the legislation’s purpose and effect. In a post-Dobbs environment, those laws would be easily upheld under a “rational basis” test that defers to a state’s interest and method in regulating medical practice.
Dobbs changed the rules only for the Federal Constitution, which means that state constitutions will now be a major field for litigation. A significant danger is if state courts declare that abortion is a “fundamental right” under their state constitutions. Some states, like New York, have already done so. That means that courts would subject any law affecting abortion to the highest level of review, called “strict scrutiny.” Under that standard, the government has the burden of showing that the law is narrowly tailored to achieve a compelling state interest. Most laws that receive strict scrutiny are found to be unconstitutional.
So the battle in the states will be both legislative and in litigation.
We also have to make sure to dispel some of the myths about Dobbs, which were already circulating in advance of the decision. Dobbs also did not make abortion illegal in most of the country. Unfortunately, a majority of abortions take place in states where it will continue to be not only legal, but freely available. Dobbs also does not mean that women will face criminal prosecution for abortions or miscarriages. Nor did Dobbs overrule the sexual revolution – there is nothing in the decision that would support a push for laws against contraceptives or same-sex “marriage.”
The only bad news from Dobbs is that it didn’t correct Roe’s most tragic error. When the Roe Court held that an unborn child was not a “person,” it relied on bad history and made the same mistake as in the infamous Dred Scott decision – writing an entire class of human beings out of the Constitution. That view of history was egregiously wrong. The legal personhood of an unborn child was firmly established in the history of American and English common and statutory law.
With Roe finally out of the way, scholars and advocates can now devote more attention and effort in that direction. The predominance of originalism in current conservative jurisprudence, which looks to the original public meaning of the Constitution, provides a rich environment for the full personhood of the unborn to be developed in further litigation.
Dobbs is not the final consummation of the pro-life movement. We have a lot of work to do. We should definitely celebrate this day as a huge victory for truth and justice.
As we go forward, it may be worth recalling the famous remark by Winston Churchill during the Second World War: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
Praise God for the justice and right reason shining forth from the Dobbs decision. Being grounded in the judicial restraint proper to Article III courts, it alas does no more than right the constitutional usurpation that was Roe, and returns the matter of abortion to the States. For that reason, the real work of the pro-life movement begins in earnest now – to educate legislators and the broader culture on the imperative to protect human life at all stages of development. But it is work that can take a moment to celebrate the enormous victory Dobbs represents. God bless the work of the Human Life Review!
Amen,amen, amen, Thomas!
This is a step to becoming once again “One Nation Under God” again.
May the Lord be with us during this turbulent time and may many unborn humans be protected!
Hallelujia my prayers are answered.Thank you LORD.Now i need to move to a pro-Life red-state at Godspeed.
Hopefully this will impact other countries like Canada to follow suit.
1. Now the hard work begins – we must emphasize that pro-life means that we should direct more resources towards supporting mothers and their children – AND
2. start emphasizing the financial and emotional responsibilities of fathers of children – one of the worst effects of the abortion on demand culture was that the total responsibility for the consequences of unmarried sex was the pregnant woman.
While I rejoice I am afraid it will be a short rejoicing as the states can now pass a low to once again support abortion. I live in CA so I bet it won’t take Newsom long to try and pass something to restore abortion but will wait and see and keep praying.
Of course abortion was never implicitly protected by the U.S. Constitution, but for the past 50 years, America has committed irreparable harm to her own with the loss of millions of innocent lives by accepting those lies. How we set our to right such grievous wrongs for the future will demonstrate what kind of people we have become: morally depraved cowards or a repentant, humbled nation.
What I took home from the judgement is the authority on pages 18-19 that refers to transferred malice: if the defendant, intending to kill only the unborn child, accidentally killed its mother, then by transferred malice that is a murder.
The unborn child can always be an object of criminal malice even where causation of death can’t be proved for want of live birth. Take the mens rea and join it to the actus reus of attempted murder, and you have a crime at Federal and State levels. Then the Equal Protection Clause cuts in to preclude disparate and over-lenient punishment in unborn child cases.
Will HLR reprint the Dobbs case with all opinions? I would love it.
Thanks for putting the decision on Dobbs in its legal context.
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