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[1] and Planned Parenthood v. Casey.[2]

Here is the money quote from the majority opinion in Dobbs v. Jackson Women’s Health Organization, 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”.[3]

We can now take a preliminary look at the new world of abortion law under Dobbs, to get a sense of where we are, and where we’re going.

The Law Before Dobbs

Let’s do a quick recap on the situation that existed pre-Roe. Before that decision, it was understood that states had extremely broad discretion to protect unborn children.

Protections for unborn children, and thus the illegality of abortion, were recognized in English common law as far back as the thirteenth century. American common and statutory law followed suit and consistently criminalized abortion. At the time Roe was decided, almost all states had laws that protected unborn children subject to a few narrow exceptions (to save the life or health of the mother, fetal disability, or rape and incest). Only four states permitted abortion virtually on demand, at least up until 24 weeks. No court had ever held that abortion was a right under the U.S. Constitution.[4]

Roe turned that world upside down. It invalidated every single one of those laws. It held that an unborn child is not a “person,” and thus was not entitled to any protection under the constitution. Instead, it held that the right to kill an unborn child was actually a constitutional right. Never mind that the people who drafted and ratified the constitution and its amendments would have considered that idea completely absurd.

Roe established an arbitrary framework for regulating abortion based on trimesters. Those rules were later modified by the Supreme Court in Casey. The Court held that viability was the key moment for regulating abortion. Prior to viability, abortion could not be prohibited, and no regulation could survive if it imposed an “undue burden” or a “substantial obstacle” on a woman seeking an abortion. After viability, abortion can be regulated but there has to be an exception for the “health exception”.

But according to the Court, that “health exception” must be so broad as to permit abortion for any reason. In Roe’s companion case, Doe v. Bolton,[5] the word “health” was defined to mean “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient”.

Few abortion laws survived review under the Roe/Casey rules, which have been acidly called an “ad hoc nullification machine”.[6] In practice, abortion on demand was constitutionally protected through all nine months of pregnancy, with few exceptions.[7] And that meant that no matter how many different laws pro-life legislatures managed to pass since 1973, courts consistently struck down most of them.

What Does Dobbs Do?

The most important thing that the Supreme Court did in Dobbs was to recognize that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”[8]

Thus Dobbs reversed one of Roe’s fundamental mistakes. Abortion is no longer given any special protection under the U.S. Constitution. Laws will no longer be held to the arbitrary and incoherent “undue burden” rule of Casey. States are now given much more leeway to protect unborn children at any stage of pregnancy.

Thanks to Dobbs, courts will evaluate whether laws protecting unborn children have any rational relationship to a legitimate government interest.[9] They will enjoy a “strong presumption of validity”.[10] And those “legitimate interests include respect for and preservation of prenatal life at all stages of development”.[11]

This “rational basis” test is the most deferential test for constitutionality. It is used routinely in cases involving rights that are not considered “fundamental” but are instead just “liberty interests”. That is now the category into which abortion falls, thanks to Dobbs. And the crucial point is that most laws survive constitutional review under the “rational basis” test.

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. We can expect that most of these laws will now be upheld. But this is a very complicated situation that requires state-by-state analysis of statutes, constitutions and judicial decisions.[12] It is also a moving target, as both pro-life and pro-abortion legislatures are rapidly at work.

There are already major differences between states. For example, in New York, the right to an abortion is virtually unlimited. The New York Court of Appeals has upheld “the fundamental right of reproductive choice”.[13] In 2019, the “Reproductive Health Act” was enacted, reaffirming that abortion is a “fundamental right”, removing any criminal penalties for anyone who performs an abortion, authorizing non-physicians to perform abortions, and guaranteeing the right to abortion on demand throughout pregnancy. The Act even repealed a law that required a second physician to be present at a late-term abortion, to provide care for the child.[14]  Unfortunately, Dobbs will have no effect on these awful laws, and abortion will continue its brutal harvest in New York.

In contrast, prior to Dobbs, Mississippi had numerous laws that would provide extensive protection for unborn children and restrict abortion. The law upheld by Dobbs bans abortions after 15 weeks with an exception for “medical emergencies”, which are defined in a way that is limited to the mother’s health. Some of their other laws ensured medical care for children born during an abortion, required extensive informed consent, mandated parental involvement for minors seeking abortions, banning partial birth and dismemberment abortions, and banned telemedicine abortions. But Mississippi also has a six-week ban and a “trigger law” that would ban all abortions with limited exceptions.[15]  The legality of the regulations was previously in dispute, but they would certainly be upheld after Dobbs. The six-week law and the trigger law may also be upheld. Mississippi will continue to be a leader among pro-life states.

We can also see the likely result of Dobbs by looking at two recent Supreme Court cases that struck down health and safety regulations for abortion clinics.[16] Both laws were struck down under the “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.

The Dobbs holding makes two very important points that may seem like “inside baseball” for lawyers, but which have enormous significance for future cases. First, the Court said that “no such right is implicitly protected by any constitutional provision”.[17] The Court went on to explicitly rule out an argument that has often been advanced by abortion advocates (including the late Justice Ruth Ginsburg) that abortion should be protected by the Equal Protection Clause.[18] Their theory is that because abortion uniquely affects women, any law that restricts it prevents women from full participation in society. The Court has now closed the door to that dangerous argument.[19]

The second point is that the Court clearly defined the test for identifying a right that is not specifically enumerated in the constitution. This is a very contentious issue in constitutional law, because it will determine how creative courts can be in inventing new rights. Here, though, the Court reaffirmed the narrow rule, established in its decision denying a right to assisted suicide.[20] As a result, an “unenumerated right” must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[21] This will be very important in holding off any attempt to resurrect assisted suicide or euthanasia, or any innovations from gender ideology.

It’s very fortunate that there was a majority of the Court that agreed on the holding to overrule Roe and Casey. When the Court can’t produce a majority opinion, that can cause all kinds of confusion as to exactly what is the controlling holding, and thus how to apply the case in the future. The rule is that if there’s no single opinion that has a majority, the opinion with the narrowest ground becomes the precedent that has to be followed.[22]

For example, Casey was essentially a 5 to 4 decision, but the Justices in the majority couldn’t agree on the rationale, so the plurality opinion joined only by three Justices became the rule. That’s how we got Casey’s viability line and its “undue burden” standard, even though a majority of the Court didn’t agree to it.

Having a clear majority opinion in Dobbs is a strong statement about what the law is and how future courts should proceed.

What Dobbs Didn’t Do

Dobbs changed the rules only for the federal constitution, which means that state constitutions will now be a major field for litigation. Abortion advocates are showing an increasing interest in trying to convince state courts to interpret their state constitutions to guarantee the right to abortion.[23] Some state courts have done so already, but in most states it wasn’t litigated to Dobbs. The problem here is that we would have to rely on state attorneys general to defend their laws against constitutional challenges. As we we’ve already seen in Michigan, we cannot always rely on that.[24]

A significant danger is if state courts decide that abortion is a “fundamental right” under their state constitutions. Under the “tiers of scrutiny” approach discussed above, this means that courts will 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. As Justice David Souter once said, “Strict scrutiny leaves few survivors.”[25] In practical terms, this means that in those states where abortion is considered a “fundamental right”, it will be as if Dobbs never happened. Abortion will continue to have special protection under the law, if state judges are so inclined to treat it so.

Dobbs also did not specifically address the continued validity of Roe’s gaping  “health exception”. The Mississippi law under consideration had a very narrow “medical emergency” exception for abortions after 15 weeks of pregnancy. It only covered serious threats to the mother’s physical health, with no room for expansion to “all factors… relevant to [her] well-being”. But we still have to watch out for future courts trying to resurrect the broad Roe health exception, for example in assessing late-term abortion bans under the “rational basis” standard.[26] As anyone who follows Second Amendment jurisprudence could tell you, lower courts are very creative in finding loopholes in Supreme Court rules. We don’t want an apparent victory in Dobbs to turn out to be illusory.

Some Myths about Dobbs

In anticipation of Dobbs, pro-abortion rhetoric and political scare tactics began to spin some myths about what the decision would do. This is ironic in a way, because there were many, many myths about Roe and Casey that concealed how radical those decisions were.

Dobbs does not mean that women will face criminal prosecution for abortions or miscarriages. The uniform practice before Roe was to prosecute the abortionist and not the mother, who was seen as a second victim. For at least a century before Roe, no woman was prosecuted for an abortion. Most state laws explicitly immunize the mother from prosecution, and there is no indication that any law enforcement agency has an interest in prosecutions.[27] And there is no question that pro-life advocates would support laws to protect mothers from any criminal liability.

Dobbs also did not make abortion illegal in most of the country. Unfortunately, a significant majority of the population will still be living in states that recognize broad rights to abortion under either statute or their state constitutions. A very large percentage of abortions currently already take place in those states, and none of them have residency requirements.[28] Some of those states have declared themselves to be “abortion sanctuaries” and have enacted laws that would facilitate travel to obtain abortions.[29]

As a result, it is far from clear how much Dobbs will impact the number of abortions, at least in the short term. A recent Guttmacher Institute study shows that the majority of abortions (54%) are done with drugs – so-called “medical abortions”.[30] Thanks to greater flexibility in federal and state laws for “telemedicine”, even women who live in highly protective states will still be able to obtain abortions over the internet. Many states have already tried to restrict or regulate the use of these drugs, and this will continue to be a major area of litigation after Dobbs.

Dobbs also doesn’t overrule the sexual revolution. The Court explicitly disavowed any impact on other decisions recognizing “privacy”, “liberty”, and “personal autonomy” rights: “our conclusion that the Constitution does not confer [a right to abortion] does not undermine them in any way”.[31]

This is an important point. Advocates have been weaving horror stories to scare the politicians by claiming that Dobbs will lead to laws against contraceptives. This scare tactic is unfounded. Much has happened since the 1960’s, when the Supreme Court held that the constitutional “right to privacy” included access to contraceptives for married couples.[32] There is no possibility that any state legislature will pass a general ban on contraceptives, and without a law to challenge, there can’t be a court ruling.  In any event, such a ban would certainly fail even the deferential “rational basis” test in today’s legal climate.

Nor does Dobbs endanger the right to same-sex “marriage”. When the Court invented that right it did not cite Roe or Casey, nor were its decisions based on the general “right to privacy”.[33] Since then, there has been no effort to reverse those decisions. In fact, many states took legislative action to “legalize” same-sex “marriages”, even though that was not necessary. As of this date, 37 states recognize same-sex “marriages” by statute.[34] Dobbs does nothing to alter or threaten the this legal status quo.

However, these scare stories should still teach pro-lifers to avoid any extremism of our own. The overturning of Roe does not mean that full protection of the unborn is politically feasible at this time. Public opinion is still confused and divided over the morality and legality of abortion. Large majorities support legalized abortion in many cases and particularly in the earlier stages of pregnancy, and our position of abolition remains very much a minority one.[35] Legislative and legal initiatives should thus continue to proceed incrementally, to build public support for further and more extensive reforms. This will not satisfy many people in the pro-life movement, who are impatient with incrementalism and eager for a final resolution of abortion. But there is truth in the adage that politics is the art of the possible.

Unfinished Business

The really bad news is that Dobbs didn’t correct Roe’s most tragic error. When the Roe Court held that an unborn child was not a “person”,[36] it made the same mistake as in the infamous Dred Scott decision[37] – writing an entire class of humans out of the constitution. It made that mistake because it adopted a warped view of legal history that was proposed by abortion advocates. Yet, as was made clear by the incisive amicus briefs filed by Joseph Dellapena[38] and by Robert George and John Finnis[39]  in Dobbs, that view of history was completely wrong, and the legal personhood of an unborn child was firmly established in the history of American and English common and statutory law.

The Roe Court got this part of the history egregiously wrong and has still not corrected it.

Convincing the Court to correct their mistake has always been one of the ultimate goals of the legal wing of the pro-life movement. 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 this key concept to grow and bear fruit.

Indeed, Finnis and George’s brief persuasively argues that the legal personhood of the unborn was clearly understood the time of the ratification of the Fourteenth Amendment. As a result, they maintain that the original public meaning of that amendment requires that unborn children are entitled to the rights of due process and equal protection of the laws.

This would turn Roe on its head, by recognizing the inalienable human and constitutional rights of unborn children. That would permit pro-life advocates to directly challenge the constitutionality of liberal abortion laws. The argument would be that they are denying unborn children their rights to the equal protection and due process of law. Perhaps they could even convince courts to apply the “strict scrutiny” standard to pro-abortion laws, which would create a strong presumption in favor of legal protection for the unborn.

The Court did inch a little bit down the path of recognizing the human rights of unborn children. The majority rebuked the dissent for its single-minded focus only on the interests of the woman seeking an abortion.

They said “The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life.”[40]

And the Court went even further, saying “According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.”[41]

The Court also breached the question of “personhood”.[42] It was a very brief and inconclusive discussion. But the Court expressed its doubt that any arbitrary line like viability made sense in determining when someone has legal personhood. That may represent an opening to an argument that birth is likewise an arbitrary line, and that human and legal rights therefore extend back into the womb.

It is truly remarkable and encouraging to see fetal personhood discussed, and the right to life before birth explicitly recognized, in a majority opinion of the Supreme Court. It’s a start.

The Beginning and the End

In the midst of all this technical legal discussion, we must always bear in mind the ugly reality of abortion. Every day, thousands of innocent unborn children are killed by drugs that poison them or doctors who dismember and mutilate them. Their mothers also suffer the trauma of an abortion. The doctors and others involved in an abortion are damaged too, even if their hardened hearts don’t recognize it.

A sane and moral society would recoil in horror at this monstrous injustice. Dobbs has done our society a favor by taking the abortion debate out of the courts and back into the public square. It is now up to us to make abortion’s awful reality manifest and change the hearts and minds of our brethren.

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.”

 

NOTES

 

[1] 410 U.S. 113 (1973).

[2] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).

[3] Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip op. at 5. The majority opinion was supported by five Justices. Chief Justice Roberts concurred in the judgment upholding the Mississippi statute, but did not concur in overruling Roe and Casey.

[4] For a comprehensive review of the history of abortion law, see Joseph W. Dellapenna, Dispelling the Myths of Abortion History (2006), which was cited repeatedly in the Dobbs opinion, and Prof. Dellapenna’s amicus curiae brief in Dobbs, https://www.supremecourt.gov/DocketPDF/19/19-1392/185316/20210806173754092_19-1392%20Amicus%20Br%20Joseph%20Dellapenna.pdf.

[5] 410 U.S. 179, 192 (1973).

[6] The pithy phrase is usually attributed to Justice Antonin Scalia, but it originated with Justice Sandra Day O’Connor in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, dissenting).

[7] E.g., Carhart v. Gonzalez, 550 U.S. 124 (2007) (upholding the federal ban on partial-birth abortions).

[8] Dobbs, supra at 6.

[9] Dobbs, slip op. at 77.

[10] Id.

[11] Id. Other factors include “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.”

[12] See, e.g., Guttmacher Institute, “Abortion Policy in the Absence of Roe” (June 1, 2022), https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe

[13] Hope v. Perales, 83 N.Y.2d 563 (1994). See below for the legal significance of this.

[14] 2019 N.Y. Laws Ch. 1; for a detailed critique of its provisions, see New York State Catholic Conference, “New York’s Late-Term Abortion Expansion: The ‘Reproductive Health Act’ Fact Sheet”, https://www.nyscatholic.org/wp-content/uploads/2019/03/rha-fact-sheet.pdf.

[15] Americans United for Life, “Mississippi’s Abortion Laws”, https://aul.org/spotlight/mississippi/ (updated as of June 16, 2022). The “trigger law” (Miss. Code Ann §41-41-45 (2007)) took effect when the state attorney general certified that it is reasonably probably that the law would be upheld now that Roe had been overturned.

[16] Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016)..

[17] Dobbs, slip op. at 5.

[18] Id., at 10-11.

[19] There remains a threat that this argument could be made based on a state Equal Rights Amendment or Equal Protection Clause. Edward Mechmann, “The Dangerous Good Intentions of the Equal Rights Amendment” (February 12, 2020), https://edwardmechmann.wordpress.com/2020/02/12/the-dangerous-good-intentions-of-the-equal-rights-amendment/. .

[20] Washington v. Glucksburg, 521 U. S. 702 (1997).

[21] Dobbs, slip op. at 12-15.

[22] This rule was established in Marks v. United States, 430 U.S. 188 (1977).

[23] See, e.g., Center for Reproductive Rights, State Constitutions and Abortion Rights (2022), https://reproductiverights.org/wp-content/uploads/2022/05/State-Constitutions-Report-5.12.22.pdf.

[24]  The Attorney General of Michigan has announced that she will not defend a lawsuit challenging that state’s pre-Roe statute. https://www.michigan.gov/ag/News/press-releases/2022/04/07/AG-Nessels-Statement-on-Efforts-to-Preserve-Abortion-Rights-in-Michigan. But a recent Supreme Court ruling may give legislators the ability to defend laws if the attorney general refuses. Berger v. North Carolina State Conference of the NAACP, No. 21-248 (decided June 23, 2022).

[25] City of Los Angeles v. Alameda Books, 535 U.S. 425, 455 (2002) (Souter, dissenting).

[26] Theresa Stanton Colette, “Perspectives on the Impending Fate of Roe”, Human Life Review (Summer 2021), p. 38.

[27] Linton, Paul Benjamin, “Overruling Roe v. Wade: The Implications for Women and the Law” (2017), https://ssrn.com/abstract=3200207, and Clarke Forsythe, “Punishing Women for Abortion – Trump Contradicts Centuries of Legal Experience”, National Review Online (April 1, 2016), https://www.nationalreview.com/2016/04/donald-trump-abortion-wrong-punishing-women/.

[28] Guttmacher Institute, “Long-Term Decline in US Abortions Reverses, Showing Rising Need for Abortion as Supreme Court Is Poised to Overturn Roe v. Wade” (June 15, 2022), https://www.guttmacher.org/print/article/2022/06/long-term-decline-us-abortions-reverses-showing-rising-need-abortion-supreme-court.

[29] E.g., New York (https://www.governor.ny.gov/news/governor-hochul-signs-nation-leading-legislative-package-protect-abortion-and-reproductive), New Jersey (https://nj.gov/governor/news/news/562022/approved/20220511a.shtml) and California (https://apnews.com/article/abortion-california-sanctuary-625a118108bcda253196697c83548d5b).

[30] Guttmacher Institute, supra at note 28.

[31] Dobbs, slip op. at 31-32; see also at 66 and 71-72.

[32] Griswold v. Connecticut, 381 U.S. 479 (1965). The right was later expanded to include non-married couples, Eisenstadt v. Baird, 405 U.S. 438 (1972), and minors Carey v. Population Services International, 431 U.S. 678 (1977). Those decisions have been much criticized, and Roe was specifically based on Griswold‘s “right to privacy”. But no Justice has ever suggested that overruling Roe undermines the “right to privacy” as it relates to sexual conduct.

[33] See Obergefell v. Hodges, 576 U.S. 644 (2015) (the majority cited the “right to privacy” cases as merely “instructive”) and Windsor v. United States, 570 U.S. 744 (2013) (the word “privacy” is never mentioned in the majority or dissenting opinions).

[34] World Population Review, “Gay Marriage by State 2022”, https://worldpopulationreview.com/state-rankings/gay-marriage-by-state.

[35] See, e.g., Pew Research Center, “America’s Abortion Quandary” (May 6, 2022), https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/.

[36] Roe, 410 U.S. at 158.

[37] Dred Scott v. Sandford, 60 U.S. 393 (1857).

[38] Supra, at note 4.

[39] Brief of Scholars of Jurisprudence John M. Finnis and Robert P. George as Amicus Curiae Supporting Petitioners, Dobbs, supra,  https://www.supremecourt.gov/DocketPDF/19/19-1392/185196/20210729093557582_210169a%20Amicus%20Brief%20for%20efiling%207%2029%2021.pdf.

[40] Dobbs, slip op. at 38.

[41] Id.

[42] Id. at 51.