What Comes After Roe

Today, the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that “the Constitution does not confer a right to abortion. Roe and Casey must be overruled.” Almost fifty years after handing down its calamitous abortion decision on January 22, 1973, SCOTUS has finally corrected the biggest mistake it ever made.

That is not just my judgment. It is also the justices’ judgment. The Court infrequently overrules itself on constitutional issues; a “partial list” in Dobbs includes only twenty-six instances since 1938. Rarely in these overruling cases has the Court fessed up as it does in Dobbs, stating that Roe’s “constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Justice Samuel Alito’s masterful majority opinion buries Roe deep in the jurisprudential graveyard where tombstones bear infamous names like Dred Scott v. Sandford and Plessy v. Ferguson.

The Dobbs opinion pledges to test abortion regulations for a “rational basis.” That means (and other passages in Dobbs confirm) that almost any restriction on abortion access will be upheld. Even a state criminal prohibition on abortion, if it includes exceptions for saving the mother’s life and, in some cases, to prevent serious bodily injury to her, is now constitutionally safe. Dobbs is, for this reason, epochal.

In one crucial respect, Dobbs falls short: It does not say that the unborn are “persons” who enjoy a constitutional right to life under the Equal Protection Clause. (A friend-of-the-court brief by John Finnis and Robert P. George made a compelling historical argument that the Fourteenth Amendment was originally understood to do exactly that. The Dobbs opinion does not address their argument.) Without this constitutional guarantee of life, the unborn will be safe from destruction in, say, Mississippi, but will be in deadly peril in California, which has declared its intention to be an abortion “sanctuary.”

Dobbs states that “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” In this picture of the future, the Court and the Constitution are scarcely visible. This suggests that the abortion controversy going forward is political, not judicial. It sounds like the courts are getting out of the abortion business.

A coherent reading of the entire opinion, however, brings a different picture into focus. This view portends future judicial protection of the unborn under the Constitution. Dobbs may not explicitly endorse fetal personhood, but Dobbs does put building blocks in place for future litigation to deliver to unborn human beings all, or almost all, of the protection that they deserve as “persons” under the Equal Protection Clause. This will require another slog through the courts.

The place to begin describing these building blocks is in the opinion's affirmation that access to lawful abortion is a singular constitutional question for which there is no fit precedent because, and only because, it kills an unborn human being.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” . . . None of the other decisions cited by [those two cases] involved the critical moral question posed by abortion. They are therefore inapposite.

No wonder, then, that Dobbs affirms that “respect for and preservation of prenatal life at all stages of development” is a legitimate state interest. If abortion is not lethal to a human being, the whole case that Dobbs makes collapses.

Thus, abortion-permissive laws like those in California must have behind them a convincing answer to these questions: 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 the child at fertilization and the birth of the child nine months later? In our constitutional order, every baby at and after birth indubitably enjoys the equal protection of the laws against homicide, or “infanticide.” What, then, is the non-arbitrary basis for saying such equal legal protection begins at birth, but not a moment before? Or at “viability”? At “viability” but not at fifteen weeks? Or at fifteen weeks but not before then?

The Dobbs opinion sets out the main points for arguing that there is no such non-arbitrary basis—that is, points for arguing in future litigation that California (for example) has no answer to the question about substantial change. First, the Court recognizes that whatever it is that gives anyone a right to life, it must be something about that individual and not about some external circumstance, such as “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 opinion then deploys what amounts to an argument that there is no substantial change between the moment of fertilization and birth, a case against making any prenatal distinctions among unborn children. “If ‘viability’ means the ability to survive outside the womb, 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’”? Dobbs reports that “Roe did not say, and no explanation is apparent.” “Viability” is, the Court concludes, an “arbitrary line.”

The opinion builds on this argument when it turns to the rationality of distinctions between pre- and post-natal human beings. This “arbitrary line,” the Court writes, “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,” the opinion continues, “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.’” Dobbs thus contains points and arguments for future pro-life litigation to ensure that the unborn receive full protection as “persons” under the Equal Protection Clause.

Dobbs, then, is a decisive turning point on the road to securing an equal right to life for every human being, in the womb and out of it. It is the end of the beginning of the greatest civil rights struggle of our time.

Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.

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Photo by Elvert Barnes via Creative Commons. Image cropped.