by Richard Stith
I’m grateful that the majority of the US Supreme Court in its 2022 Dobbs case overturned the Court’s 1973 Roe v. Wade decision (and the 1992 Casey decision) that had declared the existence of a constitutional right to elective abortion.
Some of my friends are disappointed, however, that the Supreme Court left the abortion question up to state and federal law, rather than recognizing the unborn child as a fellow human being with his or her own constitutional right to life. This disappointment is understandable.
But it’s important that we also take note of some strikingly pro-life aspects of the Dobbs majority’s opinion, and even of the opinion of the pro-choice dissent.
It is true that Justice Alito’s majority opinion does not explicitly recognize that the unborn child has rights under our Constitution. But it provides future legislators and courts with quite useful arguments in favor of prenatal protection.
First of all, the opinion recites the pro-life findings and conclusions of the Mississippi legislature, without questioning their accuracy. Here are those legislative determinations as described in the majority decision:
The legislature . . . found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the “unborn human being begins to move about in the womb”; at 9 weeks “all basic physiological functions are present”; at 10 weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails . . . begin to form”; at 11 weeks “an unborn human being’s diaphragm is developing,” and he or she may “move about freely in the womb”; and at 12 weeks the “unborn human being” has “taken on ‘the human form’ in all relevant respects.”
It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
Indeed, at the end of the majority opinion, the Court clearly validates similar sorts of claims, by saying that they constitute a “rational basis” for laws against abortion, as required by the due process clause of the Constitution. The majority affirms that the state’s
legitimate interests include respect for and preservation of prenatal life at all stages of development; 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.
Even the dissent does not attempt to cast doubt on the majority’s affirmation of the continuous dignity of prenatal life throughout pregnancy. Indeed, in opposing the overturning of Roe, it readily acknowledges that “Roe and Casey [themselves] invoked powerful state interests [in ‘protecting prenatal life’] operative at every stage of the pregnancy and overriding the woman’s liberty after viability.”
The dissent goes on to argue, however, that those two cases found that, prior to viability, a pregnant woman’s liberty interests override the state’s interests in protecting prenatal life, a conclusion to which the Dobbs dissent adheres, over many pages and with great emotion.
The majority opinion counters that, by letting maternal liberty override life prior to fetal viability, the dissent thus
would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires [emphasis in original] 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.
These brief lines are the spearhead of the entire Dobbs decision. The majority here makes three or four striking affirmations central to understanding the scope of the permission the Dobbs Court gives to the states to forbid abortion.
It calls Roe’s viability line “arbitrary,” thus presumably forbidding any state or federal “codification” of Roe, since the due process clause of the Constitution requires a “rational basis” for all laws. It further avers that states may recognize the rights of “personhood” in the unborn child prior to viability. Among the “human” rights that a fetus may have, the Court explicitly declares the right “to live” to be “the most basic human right,” thus responding decisively to the dissent’s insistence that, prior to viability, states must treat a mother’s freedom as more important than a child’s life.
Moreover, although the Dobbs majority does not explicitly find that a child enjoys federal constitutional protection prior to birth, it does provide a strong argument against those who claim the fetus is not worthy of protection because it doesn’t yet count as a “person”:
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. By this logic, 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.”
There’s something else the majority’s language provides to pro-lifers. It gives them a solid counter to folks who might call them “woman haters” in light of the dissent’s passionate elaboration of abortion’s alleged benefits to women. The Court reaffirms a finding, originally made in 1993, that “the ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women.”
Perhaps its greatest gift to pro-life people, however, is Dobbs’s complete lack of interest in the subject of religion. None of the opinions treats as even worthy of debate the common suggestion in the media that abortion involves a war between religious theocrats and secular democrats.
Nowhere in the majority opinion, the concurring opinions, or the lengthy dissenting opinion is there any allegation that opposition to abortion arises simply from religious doctrine, rather than from a rational understanding of the universally acknowledged facts of human gestation.
The opinions as a group and the case as a whole bespeak not a battle of faiths but a straightforward struggle between liberty and life, with life now favored by law to win.