The End of the Beginning of the End of Abortion

The decision today in the Dobbs case, long awaited from the Court, can be appreciated—and savored—as a resounding first step. To rephrase Churchill’s line, we might say that we are only at “the end of the beginning” in dealing with the turbulence that abortion has imparted to our political life for the past fifty years. That turbulence promises to rise now to new levels of enmity, until our people can regain some moral clarity on the taking of innocent life in the womb. But something good has been done, and there is an analogy here to the Emancipation Proclamation: It freed only the slaves held in states at war with the national government; it did not free slaves held in border states such as Delaware. And yet it became clear that it was animated by an anti-slavery impulse, and that’s how it came to be understood. In the same way, this decision will be seen as a decision affirming life. It will be seen as inviting legislatures in the states to begin casting the protections of the law over the unborn child in the womb—and it will do that even though the conservative majority goes out of its way to avoid any such invitation or encouragement.  

Still, the decision will be seen as a pro-life proclamation even as abortions proceed at a massive level in the blue states. Our disappointment here mirrors that of people on the other side: They are feeling dispossessed, because they thought they bore nothing less than a constitutional right, which does not go in and out of effect when they move from one state to another. And for our part, we lament the fact that the Court does not move to put the critical anchoring point in place as it sends the matter back to the states: Namely, that as we draw on the objective facts of embryology, that offspring in the womb has never been anything less than human from its first moments, and not merely a part of the mother. If that predicate were put in place, there would be a clearer understanding of what makes it deeply justified for the laws in the states to cast their protections over the child in the womb. And what makes it warranted in turn for Congress and the federal courts to act when the protections of the law are withdrawn from a whole class of human beings in the states.

But the majority in Dobbs conspicuously held back from putting that premise into place. And that is why the dissenting opinion by Justice Stephen Breyer makes no contact with the opinion he is ostensibly opposing. Breyer charges that the Court today “says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” And yet that is what Justice Samuel Alito and his colleagues sought carefully to avoid saying. The issue of abortion has been returned to the states, and the Court has offered no directions as to how and when a legislature may choose to protect the child in the womb. The Court has simply decided that nothing in the text of the Constitution, or the legal history of this country, has ever recognized such a right to abortion. As one of my own friends among the justices once put it:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. . . . There is of course no way to determine that as a legal matter; it is in fact a value judgment.

The matter will be sent back to the states and people will be invited to reach their own judgment on how much they “value” the life of the fetus in the womb. The dissenters take it as a given that the only “persons” with serious interests at stake here are the women who see their lives and prospects diminished if they are deprived of the chance to order an abortion at a timely moment. What is notably erased from the screen is any recognition of that small creature in the womb, as one who might have the standing of a human being, and whose injuries “count.” 

What the dissenters pretend not to see is that the conservative majority in Dobbs has done nothing to refute that assumption. It has not moved to put in place the rival understanding that the child is indeed a human being with a claim to be protected by the law from its first moments. Justice Alito was quite crisp in pointing out that the test of “viability” made little sense here. Whether a child sprung from the womb has a decent chance of being sustained outside the womb may be an interesting question in “incubator science,” but it has no bearing on whether the child has ceased being anything other than a human being at any stages of the pregnancy. Alito came the closest, though, to insisting on that claim of the child to the protection of the law even at its earliest moment: The legitimate interests of the state in regulating abortion could tenably encompass, as he said, a “respect for and preservation of prenatal life at all stages of development.” But he evidently felt constrained from saying what James Wilson said in the first days of the Constitution. Wilson, one of the premier minds among the American founders, asked this question: If we have natural rights, when do they begin? And his answer was: They begin as soon as we begin to be. And so as he wrote:

In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

For all we can tell, that sense of things was decisively rejected by Alito’s colleague Justice Brett Kavanaugh in his morally curious claim that the Constitution is “neutral” on abortion: “On the one side,” he wrote, “many pro-choice advocates forcefully argue that the ability to obtain an abortion is critically important for women’s personal and professional lives, and for women’s health. . . . On the other side, many pro-life advocates forcefully argue that a fetus is a human life.” In other words, on this construction, a “conservative jurisprudence” on abortion must begin with the axiom that there is no truth to be known on the human standing of that child in the womb. But that is a jurisprudence that accepts, as its grounding, a radical falsehood. Whatever else it is, it cannot be a coherent jurisprudence. 

Justice Kavanaugh is a thoughtful man, and some of us hope that he is willing to take a sober, second look at what he has put in place. But he catches the sense of the holding here: The Court will pronounce no truth on the human standing of that child in the womb, nothing that must provide the predicate for anything that will be legislated in the states. This grave matter, returned to the states, will be argued over in the domain of “beliefs” and “value judgments,” with no fixed truths on when human life begins. But in that case, we should not be surprised to discover people in the pro-life states complaining that they have been dispossessed of a deep personal right simply because it wasn’t supported by the opinions and “beliefs” of 51 percent of the people around them.  

It is a good thing that this first step has been taken, and the paths of persuasion and argument have opened again. There can be no question that the Court, over the past fifty years, has been the chief engine in changing the culture of this country on abortion. It did not merely pronounce a legal judgment; it tutored the country on the moral rightness of abortion, and the rightful sense of grievance for anyone deprived of that right. And so it becomes apt to ask just what rival teaching the Court will be putting in place now for our people as it sends the matter back to the states. We can be grateful for the decision in Dobbs, but if the American people come to absorb now the notion that the standing of human life bears no objective truth, that the respect for that life depends on the vagaries of opinions whirling around us, we can earnestly wonder how the Court is reshaping for the better the sensibilities of people who will be filling this landscape all around us.

And so again, this is the end of the beginning, and now the work begins anew.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C. 

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