Dobbs v. Jackson Women’s Health Organization

The Consummate Statecraft of Samuel Alito

I have to confess that when the news broke last night and I read that careful, exhaustive, impressive opinion from Justice Alito, my eye moved to those key points for which I was looking, and there I fell into a mild despair. For the Justice preserved, as one of the defining strands of his opinion,

Once More Unto the Breach: Arkes v. Whelan on the Overruling of Roe

In a response to Ed Whelan’s critique of “On Overturning Roe,” Prof. Arkes insists that the moral argument against Roe is the only logical one for judges who believe in the deep wrong of abortion. The pro-life cause rests on objective moral truths, not on value judgments, and as a result does not require judges (as Whelan claims) “to read their own moral convictions into the Constitution.”

Justice Byron White and Abortion

Responding to Richard Doerflinger’s critique of “Waiting for Dobbs,” Prof. Arkes asserts that conservative justices could successfully outlaw most abortions by returning to Justice White’s standard: only abort to save the mother’s life. At the same time, however, White did the pro-life cause a lasting disservice by focusing not on the rights of unborn babies but on the abuse of “raw judicial power.”

Waiting for Dobbs

Hadley Arkes recalls that day, back in 1986, when Justice Byron White, one of the original dissenters in Roe v. Wade, startled Justice John Paul Stevens by suggesting that he too could accept Roe and a “right to abortion” in some form. Stevens seemed genuinely baffled. What White was offering was an understanding that would keep Roe v. Wade as a shell, while the substance was removed. Professor Arkes tries to reconstruct that argument here as an anticipation of what might happen if the Supreme Court seeks to take “the low door under the whole” in the Dobbs case—sustaining the law in Mississippi while affecting not to overrule Roe v. Wade.

The Dobbs Case and the Strains of Prudence

Prof. Arkes analyzes the arguments at play in the upcoming Dobbs case, and explains that while there are potential outfielders and stockbrokers, there is no such thing as a “potential” human being.

The Case for the Unconstitutionality of Abortion

Josh Hammer explores the debate amongst conservatives on whether the legality of abortion should be returned to the states, or if it should be outlawed nationwide. He astutely notes that if pro-lifers adopt the latter position, they will stretch the Overton window in their favor.

Anchoring Truths
Anchoring Truths is a James Wilson Institute project
The James Wilson Institute’s Mission is to restore to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights.
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