In Part I of this two-part article we showed that the real burden on Republican campaigns was not the pro-life cause but the failure of many Republicans to authentically articulate the evils of abortion. A corollary of this conclusion is that Dobbs was far from being a “loser” for Republicans. Rather, its principled constitutional analysis was excoriated by pro-abortion partisans without receiving an effective response and powerful embrace from supposedly pro-life politicians. Defending the majority opinion in Dobbs is, of course, only an interim objective of the pro-life movement, intended to secure the constitutional space to advance and achieve legislative measures to protect life. The ultimate goal is to change the culture to one that values unborn life, and as we argued in Part I, that will require broadening the scope of alliances that the pro-life movement has forged to bring in more progressive elements. Yet, before leaving Dobbs behind, it is imperative to appreciate— and refute—the superficially attractive arguments that the dissent in Dobbs deployed to make the ultimate attack on the most vulnerable members of the human family seem “progressive” and the defense of those vulnerable lives seem “reactionary.” An effective refutation of this mischaracterization will be key to winning the broader cultural struggle for life that is to come.

I. Summary

The dissent exaggerates the majority’s deference to the views of abortion in 1868 or earlier, while ignoring the fact that abortion had never, not in 1868 nor at any time in the ensuing century before Roe was decided, been deeply rooted in our nation’s traditions. Despite the dissent’s claim that the Dobbs majority “fail[ed] to recognize that the constitutional ‘tradition’ of this country is not captured whole in a single moment,” the truth is the majority merely refused to create a constitutional “tradition” that had existed at no moment ever before Roe’s own judicial fiat, and by doing so declined to exercise the “raw judicial power” that Roe’s critics have consistently pointed out in it. The dissent further attempted to paint the majority opinion as unconcerned with any rights of women to control their own bodies, as if the opinion authorized state-mandated conception or a host of other imagined restrictions. Yet the majority makes clear that it is only the unique nature of abortion as involving a legislative interest in protecting a human life in being from direct destruction that requires deference to the democratic process. As noted above, this does not render that interest illegitimately “theological,” any more than other well-accepted legislative prioritizations of one right over another to avoid potential, even theoretical threats to human life. Allowing, in the exceptional case of abortion, democratically enacted laws to curtail otherwise greatly respected liberties of bodily autonomy thus no more evinces a complete disregard for women’s control of their own bodies than, say, laws authorizing military conscription in a crisis evinced a general disregard for men’s control of their bodies outside those crisis situations.¹ Indeed, the uniqueness of the asserted interest at stake in abortion simultaneously rebuts both the charge of lack of concern for women’s control of their bodies and the suggestion that other rights not implicating the potential destruction of human life are similarly vulnerable.

While engagingly written and rhetorically effective, the dissent’s critiques rely on subtle mischaracterizations that undercut their persuasiveness. Employing too well the stratagem that the best defense is a good offense, the dissent’s attack on the Court’s opinion as a radical departure from precedent in the service of an extreme position tries to shift our gaze from the dissent’s own extreme position: that some combination of the Fourteenth Amendment Due Process clause and the “long sweep of our history” somehow withdraws from the people the power to pass a law generally prohibiting abortion after 15 weeks (with a broad exception for medical emergencies). Such a law, after all, would be well within the mainstream of, if not more liberal than, the laws of most European democracies. Let us examine these mischaracterizations in more detail.

II. Is the Dobbs Majority Obsessed with the Past, and Blind to the “Long Sweep of History”?

The dissent is not lacking in wit and humor: The majority, it claims, says we must read the Constitution “as viewed at the time of ratification (except that we may also check it against the Dark Ages) ” It’s easy to lampoon excessive focus on “the 13th century!” or the “Dark Ages,” until, of course, one understands that the majority detours into that history because Roe itself does. The “lenity of the common law” was in fact one of the four historical pillars Roe used to support its unprecedented holding, and one which was simply wrong. Justice Blackmun’s opinion in Roe relied in large part on a historical conclusion that abortion was unlikely to have been “ever established as a common-law crime, even with respect to the destruction of a quick fetus.” 410 U.S. at 136. Moreover, in the Dobbs case itself, the U.S. Solicitor General, as amicus curiae for respondents, argues that the common law’s failure to criminalize abortion was relevant both in itself and through its effect on expectations of an abortion right at the time of the Founding, thus supporting an abortion right. Justice Alito’s care to go over the common law authorities can thus not be seen as some medieval theological excursion to gird his conclusion, but rather the respect to take seriously, and reject, the medieval theological excursion that Roe had initiated and the Solicitor General extended. The majority’s point is that “lenity of the common law” cannot be a rationale for a constitutional abortion right, in part because the common law was not lenient. The common law is only indirectly relevant for what it says about the understanding of the drafters and state legislatures at the time of the ratification of the Fourteenth Amendment; the majority throughout is focused on the American experience, including subsequent American legal tradition, which is every bit as inhospitable to abortion’s cause.

Far from being blind to the post-ratification sweep of history, the majority considered the century of American experience from the Fourteenth Amendment until Roe and correctly found nothing evincing a “deeply rooted” right to abortion. In the late 1950s, well after women’s enfranchisement, it noted, at least 46 states prohibited abortion “however and whenever performed” except as necessary to save the life of the mother. On the eve of Roe, there was some liberalization with respect to the earliest abortions, but 30 were still prohibiting abortions at any time with the exception for the life of the mother; the rest had more liberal restrictions, but critically, none allowed abortion as Roe, in a bolt from above, required: up to viability at least, but with constitutionally ordained exceptions for life and health that in effect made it all but impossible to prohibit abortion at any time in a pregnancy. If anyone was blind to the “sweep of our history,” it was Justice Blackmun when he summarily found the laws of all 50 states violative of a right “deeply rooted in our tradition.”²

III. Is the Majority Trying to “Have It Both Ways” in How It Uses Post-Ratification Laws?

The dissent is in a difficult position because, as the answer to the last question shows, the “long sweep of history” sweeps in a direction uncongenial to abortion rights. Thus, Justice Alito could write that until the virtual eve of Roe no state law, no state constitutional provision, no state or federal court decision, and indeed no scholarly treatise, had asserted or found a constitutional right to abortion in American law. Hard to find the “sweep” in this history that the dissent is postulating.

It is true that post-ratification adoption of laws could not “alter the text” of the Amendment, but that does not mean that the majority is trying to play it both ways. Rather, these laws, this solid century of laws, are not being introduced to revise or supplant the intent of the framers of the Fourteenth Amendment—that much is clear, as even the dissent admits. Rather, these laws are introduced to rebut the counter-factual suggestion (which is the core argument the dissent makes) that somehow the “sweep of our history” would supplant and revise that understanding. The dissent cites the second Justice Harlan—always a good thing to do!—for the proposition that the constitutional “tradition” is not “captured whole at a single moment.”³ This is true, and thus it would be relevant if the subsequent development of state and federal decisions, and state constitutional provisions, had recognized the abortion right as somehow implicit in the scheme of ordered liberty. But that works both ways: If such new developments would be indications that the “tradition” had evolved, then certainly the absence of those very developments is also relevant, and an indication that, from 1868 until the day Roe was decided, the “tradition” did not change with respect to abortion. And this was not for lack of considerable, necessary, and laudable evolution on the equal role of women in society, and in terms of political rights. In other words, the actual evolution had most of the positive aspects the dissent describes about recognition of the equality of women; however, wonder of wonders, that evolution did not encompass the view that that equality required the creation of a new right to destroy prenatal human life.

Another dynamic that works both ways in a manner the dissent would not appreciate is the potential direction of legal evolution from 1868. To hear the dissent, one imagines there is only one way that a departure from the majority’s “crimped” reading of the Constitution could go: in a direction that would create and expand the right to abortion at the expense of prenatal life. But an opposite evolution is possible as well, and indeed, perhaps more credibly grounded in extrinsic evidence of definitions of “person” prevailing at the time of the Fourteenth Amendment. John Finnis, for one, has made a highly plausible argument that at the time of the Fourteenth Amendment, the concept of “person” was understood to include unborn life, including in the law of property, tort, and inheritance.⁴ This Finnis argument brings forward several important implications. First, it validates Justice Blackmun’s observation in Roe that if the fetus is human life, then of course abortion is not only proscribable but prohibited under the Constitution, most obviously by the Equal Protection Clause’s guarantees. Second, it shows the depth of the error embedded in the “Dobbs is theological” critique advanced by Linda Greenhouse and others. Initially, it is obvious that merely returning the question of how to weigh the possible destruction of human life to the People is not theological, and is a jurisprudential decision based on a theory of constitutional interpretation, i.e., originalism. One might then contrast such a result with a putatively more activist pro-life decision—one that finds, for example, that the Fourteenth Amendment’s Equal Protection Clause prohibits allowing unborn human life to be killed, while born human beings have the full protection of laws against murder. This decision, it might be argued, would be theological, since it would adopt a “view of the fetus as a human being” that had to be grounded, so the argument would go, only on theological conceptions about when human life begins. This view would still recognize Dobbs itself, however, as non-theological, since it deferred that important question to the legislature. Yet Finnis’s insight shows that even such an “activist” decision would still be characterizable as jurisprudential and non-theological, given the credible arguments over the understanding of personhood by the framers of the Fourteenth Amendment.

Now, before our opponents get too anxious, they should note that the Finnis view has no takers among, and is implicitly rejected by, the Dobbs majority. This does illustrate a third implication of Finnis’s argument: The dissent’s dismissal of Justice Kavanaugh’s invocation of neutrality may be too cavalier. Roe itself recognizes that if a fetus is a person, abortion is unconstitutional. Finnis shows that a fetus may have been considered a constitutional person, at least in some contexts. In this setting, Justice Kavanaugh’s concurrence and the majority’s repeated claims that “the Constitution does not take sides on the issue of abortion” are not idle rhetoric. There are two plausible lines of constitutional interests that could intersect with abortion. The Roe approach looks at bodily autonomy, a constitutional value to be sure, but one that can be weighed by the legislature and deemed outweighed by the potential destruction of human life. The Finnis approach would look at fundamental equality and reject a discrimination that allows the same human being that would be protected fully after birth to be killed with impunity at an earlier stage of development. The Kavanaugh view is that both of these lines are too speculative to be bases for mandatory constitutional prohibition. The dissent in Dobbs is well aware that a finding of fetal personhood would make abortion bans constitutionally mandated.⁵ Perhaps if they think about it more, the dissent may come to see Justice Kavanaugh’s constitutional “neutrality” as a deal worth taking.⁶

IV. Is Dobbs Illegitimate because the Majority Were New Judges, Politically Selected for Their Animosity Towards Roe?

As part of its back-up defense of Roe by appeal to the doctrine of stare decisis, the dissent argues that, in overruling Roe, the Dobbs majority was somehow different from the majorities that overruled Plessy v. Ferguson (the case that infamously invoked the doctrine of “separate but equal”) in Brown v. Board of Education, and that overruled Lochner v. New York (the notorious substantive due process case that invalidated minimum wage and maximum hours laws as violations of “freedom to contract”) in West Coast Hotel v. Parris. How was the Dobbs majority different? It seems in those cases, where the Supreme Court majority rightly found stare decisis interests outweighed, the Great Depression had intervened to show that unregulated “laissez faire” was wrong and unworkable, and decades of Jim Crow laws showed that the “separate but equal” doctrine was inherently unequal.

That is all true, but similarly, couldn’t a democratic majority find through decades of experience with Roe, along with advances in medical technology and genetic understanding, that Roe’s trimester framework was unworkable, and more fundamentally, that the human qualities and even survivability of the fetus undercut the notion of the non-humanity of the fetus that undergirded Justice Blackmun’s opinion? The dissent even suggests that the Dobbs decision is distinguishable from another famous overruling: the flag salute cases. Here, one key difference for the dissent was that the Court in West Virginia Board of Education v. Barnette, finding compelled flag salutes in class unconstitutional, consisted of the same justices who decided the earlier case, Gobitis, upholding mandatory flag salutes and the Pledge of Allegiance, just three years before. The same justices changed their minds, as if that was an inherently more legitimate way for a change to take place than from new justices coming on the Court.

Naivete and disingenuousness are in competition as explanations here. The Court is not supposed to be totally insulated from any political process. If it were, both the Supreme Court and the entire federal judiciary would be a self-replicating institution, with judges selecting new judges (a system some countries have), whereas under the Constitution, an elected official, the President of the United States, nominates federal judges, who are then confirmed by the Senate. For our nation’s pro-life citizens opposed to Roe to labor over decades to urge the appointment of justices who would recognize the flaws of Roe is not illegitimate, but a normal exercise of the popular will under our constitutional system.⁷ Finally, if it must fall only to the same judges that decided a bad precedent to legitimately overrule it, then if that precedent is not changed before its authors die, does it become permanent? Dead hand of the law indeed! Alas, this part of the dissent is probably the weakest, struggling without success to respond to the obvious fact that clear error, unworkability of the framework, and changing law and facts are all valid bases to overcome stare decisis; Roe had not just one but all of those features.

V. Are Other Rights, Like Interracial Marriage or Contraception, at Risk because of Dobbs?

This critique is not deserving of much response. The hyperbolic attacks on Dobbs always include a de rigueur reference to how it will jeopardize the right to interracial marriage. You know that Loving v. Virginia is a really good decision, because everyone wants to appropriate it, rightly or wrongly. The Dobbs dissent, to its credit, seems to recognize that invoking Loving is a stretch, and thus after the obligatory reference, spends most of its energy, and indeed with some success, in arguing that other cases that are based solely on substantive due process, notably Lawrence v. Texas and Obergefell v. Hodges, are at least undercut.⁸ But there should be no such concern about Loving. Loving is based primarily and independently on the Equal Protection Clause, and of course the anti-miscegenation statutes at issue in Loving were clear violations of the Equal Protection Clause, the central purpose of which was to eradicate White Supremacy. Even in the very unlikely event that a future Court carried the logic of Dobbs forward and took up Justice Thomas’s invitation to do away with the whole line of substantive due process cases back to Griswold, this would do nothing to threaten the central basis of Loving, which is that explicitly race-based restrictions on marriage were designed for the purpose of enforcing White Supremacy and violate the central purpose of the Equal Protection Clause.

No effective piece of fearmongering would be complete without invoking the risk posed by Dobbs to contraception rights. According to the dissent, if the majority is serious about its historical approach, then Griswold is in the line of fire too. But a fair reading of the majority opinion should not leave us relying only on their “scout’s honor.” After all, Justice Alito’s (and Kavanaugh’s) repeated promises that this decision won’t endanger those other precedents would by themselves be scant grounds for comfort for the reasons the dissent notes. Rather, the majority in fact acknowledges a tradition relating to liberty in regard to family and procreation (relying on Skinner, Pierce, etc.). Critically, none of these pre-Griswold cases was ever understood to create a right to kill prenatal life, a point the majority repeatedly comes back to. The dissent’s failure to engage the thrust of Justice Alito’s argument is reflected in their footnote 7. This footnote’s argument is off in wrongly asserting that the reason the majority does not take the “first path” of attacking Roe—the path of saying that Roe undervalued the state’s interest in life—is the majority’s fear that such an argument would prevent them from claiming they mean only to leave the issue to the democratic process, and do not have a “dog in this fight.” But in fact, the majority does indeed invoke the state’s interest in life without any compromise of neutrality. The majority’s whole point is that it does not and should not matter how much the Court values fetal life, and thus the point is not that Roe “undervalued” fetal life in comparison to how Justice Alito would value it. Rather, what matters is how the People through their representatives value fetal life; Roe is wrong for “undervaluing” fetal life in comparison to how much their representatives have valued such life in the laws of 50 states. Of course, the Court must find the legislature’s weighing of that fetal life and the mother’s autonomy interest to be plausible for rational basis analysis, an analysis for the future that might well find some restrictions on abortion constitutionally infirm (e.g., in the case of a threat to the life of the mother).

Finally, it is legitimate to ask if a weakness of the Dobbs analysis is that it would effectively disallow the finding of any new constitutional protections, and, as the dissent implied, lock constitutional rights into an 18thor 19thcentury context that couldn’t even imagine the fact patterns and technologies we face in our modern lives. Footnote 5 of the dissent charges the majority with this weakness in a rhetorically plucky way. First, the dissent notes that the majority seems inconsistent in saying that it need not determine if practices at the time of the Fourteenth Amendment “set the outer limits” of constitutional rights, while at the same time saying that legal restriction of abortion at the time of the Fourteenth Amendment “precludes its recognition as a constitutional right.” The dissent professes confusion about what the majority could mean by this inconsistency. Then, while disclaiming the power of mind readers, the dissent takes a “best guess” that the majority meant something to do with abortion being an issue that was “not new” and that hence, practice with respect to abortion restrictions at the time of ratification was more dispositive of its constitutionality. But one shouldn’t need to be a mind reader to see that is exactly what the majority meant. Yes, if, to take the dissent’s witty example, the constitutionality of a ban on time travel were presented to a future Court, there would be a need to analogize and potentially evolve the framework for understanding the scope and application of the right to “liberty” to see whether a right to time travel was implicit in a scheme of ordered liberty.9 But the fact that the specific balancing on the very question of abortion was done, contemporaneously with the ratification of the Amendment, and there was a supermajority consensus of states both at that time and for the ensuing century up until Roe that there was no such right, has to be persuasive in a way that the lack of such a consensus on time travel is not. So, good guess by the dissent. It would be remiss not to add that this doesn’t rule out considering an “evolving” consideration of that balance, such as would have been supplied by new laws, cases, state constitutions, etc., recognizing a right to abortion at some point in the intervening century until Roe, but none of that happened. So, the dissent’s implicit view is that the Roe Court itself could just assert such a right, contrary to all practice, out of thin air. The dissent was right to quote Justice Harlan’s pronouncement in Poe v. Ullman that the sweep of our constitutional tradition “is not captured whole in a single moment.” But in the same breath, Justice Harlan said judges are also not free to “roam where unguided speculation might take them.” Alas, the authors of Roe and their defenders in the Dobbs dissent engaged in exactly the type of unguided and counterfactual roaming that Justice Harlan warned against.

Conclusion

The 2022 midterm elections were a sobering wake-up call for the struggle ahead against powerful and well-endowed supporters of the abortion license. The struggle is to remind the American people of the underlying moral rightness of laws protecting unborn life, in the face of huge countervailing cultural forces and interests. The fact that we are even having the struggle, however, is the result of an important victory in Dobbs, a victory that at least allows this case to be brought to the people. That Dobbs lost the midterms is a myth. The seeming victory of pro-abortion candidates and referenda can be temporary if the pro-life movement redoubles its own education efforts and manages to effectively engage a broader political coalition that can and will speak the truth about abortion clearly and eloquently. Dobbs can’t lose anything, because it is right. If the proper articulation of how it is the people in our constitutional system that decide fundamental questions like abortion is a loser, then what is lost is not an election, but the system itself, for the people will have lost the effective practice of self-government.

While it is necessary for the pro-life movement to grow beyond the alliance with judicial conservatives that brought the important victory in Dobbs, that victory will always remain important, practically and symbolically, for erasing the perverse idea that the American Constitution, the scheme of ordered liberty that has maintained republican government and political freedom for centuries, somehow requires that a woman be able to kill her unborn child. I wish to think that even the two generations of time during which the issue has wrongly been withheld from the people—and during which they have been conditioned to think of this evil as bearing the cherished label of a constitutional right—has not atrophied the moral discernment of the people, and that they will see the murder of defenseless human life for the evil it is. The small catch with Dobbs having restored the decision to the people is that they will now be judged by how they respond.

NOTES

1. The comparison between abortion restrictions and the mandatory draft is illuminating. Without doubt, abortion restrictions impose what would, in any context outside of saving potential human life, be unacceptable impositions on bodily autonomy for nine months, and lifestyle impacts for much longer. The draft compels men (and likely in the future, women) to serve in combat for multiple years, and to run material risks of suffering lifelong injury and even death. The state interest in the draft context can, at least at the level of individual combatants, be about avoiding risks that are highly speculative, e.g., failure to defeat this enemy in this battle will risk future harm to our national interests or our allies, etc. However, unlike the case of a soldier ordered to charge an enemy position, where achievement of an important state interest may be indirect and speculative, the prevention of an abortion leads directly and certainly to the preservation of an identifiable human life. Of course, the constitutionality of the compulsory draft has been well confirmed by Supreme Court precedent, see, e.g., Arver et al v. United States, 245 U.S. 366 (1918).

2. The Dobbs majority distinguishes Roe from Griswold v. Connecticut on precisely this point. Justice Alito notes that unlike the near unanimity of state laws against abortion at the time of Roe, at the time of Griswold, “the Connecticut statute at issue was an extreme outlier.” Dobbs (opinion of the Court at n. 47). In other words, Justice Alito’s reassurance that the logic of Dobbs applies only to abortion is not lip service, but reflects the historical reality that Roe is far more vulnerable in its lack of contemporary support than Griswold, Pierce, and other pre-Roe cases cited.

3. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).

4. See, John Finnis, “Abortion Is Unconstitutional,” First Things, April 2021 edition, available at: https://www.firstthings.com/article/2021/04/abortion-is-unconstitutional.

5. See, Dobbs, dissenting opinion of JJ Breyer, Sotomayor and Kagan, at n. 7.

6. The concurring opinion of Justice Kavanaugh is thus not merely appropriating the rhetoric of evenhandedness. It is neutral to leave to the legislative branch questions that are not definitively resolved by the text, structure, or intent of the Constitution. This neutrality is illustrated by the Roe vs. Finnis comparison, showing the “equal and opposite” extremes where a constitutionalization of abortion law can take us, and between which poles the Dobbs result is neutral. It is worth reflecting on the dissent’s attempt to impugn the majority’s neutrality by noting recent cases where members of the Dobbs majority have not deferred to the legislature. Yet even the dissenters acknowledge that the examples of gun restrictions, jury composition, and restrictions on church attendance have to be treated somewhat differently as implicating rights explicitly mentioned in the Constitution. As the Court has well recognized, the analysis of when a right is fundamental begins with the text. The Glucksberg rule allowing for unenumerated rights that are deeply embedded is itself a necessary concession to the “sweep” of the tradition that Justice Harlan refers to. But surely that sweep cannot be announced out of thin air.

7. Moreover, to the extent that there is bad taste in political efforts to influence judicial selection on the basis of judicial philosophy, the historical record suggests that it was the pro-abortion side that first opened the gates wide to the politicization of judicial nominations with the orchestrated opposition to the otherwise very well-qualified Judge Robert Bork.

8. The dissent acknowledged in passing the prophetic powers of Justice Scalia dissenting in Lawrence, which found state anti-sodomy laws unconstitutional. Justice Scalia perceptively noted that a decision recognizing the right to same-sex intimacy did, in the words of Justice Kennedy’s majority opinion, “not involve” same-sex marriage, “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” The Dobbs dissent suggests that they could similarly see a rejection of substantive due process in Dobbs leading to an overruling of at least Obergefell, and only hopes that they “will not join Justice Scalia in the list of prophets.” They may have a point here, but that does little to rebut the critiques of substantive due process, so much as to express dislike of the outcomes. If the logic of Dobbs would suggest that Obergefell was wrongly decided, that would not, vel non, undercut the logic of Dobbs. See, e.g., M. Tenaglia, “Dignity, Dystopia and the Meaning of Marriage,” Human Life Review, June 2015, available at https://humanlifereview.com/dignitydystopia-and-the-meaning-of-marriage/.

9. Personally, I think that the risk of going back in time and upsetting the space-time continuum and all future history probably provides the state with a compelling interest in prohibiting time travel, but that’s just my initial sense.

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Original Bio:

Thomas Clark is a lawyer and contributor to the Human Life Review, with over 30 years’ experience in public policy and legal affairs.