Waiting for Dobbs

It will come, of course, by the end of June, in the closing hours of the year for the Supreme Court; the moment when it delivers the judgments on the most heated, controversial cases – and the justices then decorously flee town, even the country, as the reactions explode.  Bound to set off tremors this year is the Dobbs case from Mississippi on abortion, for it tees up again the possibility that Roe v. Wade may finally be overruled.

The law in Mississippi sought to bar abortions after 15 weeks of pregnancy, ostensibly out of concern for the pain inflicted on the child.  In all strictness, fetuses may feel pain much earlier.  But 15 weeks was quite enough to challenge the current line drawn by the Supreme Court by barring abortions well before viability, where a child could be sustained outside the womb.

The odds are that the statute in Mississippi will be sustained by a Court now containing Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.  And that judgment, breaking through the borderline of viability, would be enough to end Roe:  Either the case will be overruled, or the holding will be scaled back in the coming years with most of the substance removed.

Of course, even if Roe were overruled, the issue would simply be sent back to the States, and we can expect that abortions will continue to be performed in high volume in New York, California, Illinois, and other Blue States. That hard fact should bring more consolation and joy among the defenders and promoters of abortion, even as it delivers a sober awakening to many pro-lifers:  Is this really why we have marched in the streets, appealed to women entering clinics, and pressed pro-life measures at every turn – only to see abortion flourishing in the most populous states?  Is this the best that “conservative jurisprudence” could really offer us?

But what if the Court sustains that law in Mississippi and yet holds back from overturning Roe? We may find the clue in a moment that has slipped the notice of most watchers of the Court.  In 1986, when Justice Byron White, one of the two dissenters in Roe delivered a surprise to Justice John Paul Stevens, who had become a firm defender of abortion rights.

The case was Thornburgh v. American College of Obstetricians.  Justice White was now willing to fall in with his colleagues, accepting Roe as establishing a “right to abortion.”   He was willing to concede that right, which could be restricted out of concern for the health of the mother and for the protection of the fetus at some point.   

But Stevens was flabbergasted that White could accept abortion as a “fundamental right” and yet hold to the view  that “there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being”;  and that “viability” offers no morally intelligible standard, for “the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant.”

Stevens couldn’t see how a “fundamental” right to abortion could be taken seriously if White didn’t recognize “the difference between a fetus and a human being.”   What White was telling him was that he might accept a right to abortion if it were placed on the same plane as those precedents that led to that “right to abortion.”  An earlier Court affirmed the “private” rights of parents to have their children taught in schools where the instruction was in German (Meyer v. Nebraska), or where the school was religious (Pierce v. Society of Sisters).  But this right did not bar the State from requiring children to be in school up to a certain age, or that the school teach civics and history to future citizens.

Moving into the zone of “intimacy,” the “right to contraception” in Griswold v. Connecticut, could be restricted for many plausible reasons, as in barring the sale of contraceptives to minors.  Justice White also thought it legitimate for a statute on contraception to discourage “all forms of promiscuous or illicit sexual relationship be they premarital or extramarital.” And, of course, the case that heralded  “right to marry” (Loving v. Virginia) did not mean that marriage could not be restricted for many reasons: age, number of partners or marriages (and left unsaid at the time, the need for male and female).

If the right to abortion in Roe were put on the same plane as rights in those other cases, what would it mean?  There might be some circumstances in which abortions could be seen as justified, but the surgery would be open to restrictions at many levels to protect the unborn child, and the pregnant woman.  Then where would that right to abortion finally be?

In his dissent in Roe, Justice Rehnquist  took it as given that a state could not prohibit abortion “where the mother’s life is in jeopardy.”   A more demanding moral perspective may still raise questions about choosing one innocent victim over another.  And yet the life of the mother still commands the widest assent, across the political spectrum, on when an abortion may be justified.

If the matter is now seen as Justice White had it, the Court could announce that Roe has not been explicitly overruled;  that there remains a “right to abortion,” tightly confined;  but that it’s open now to governments at every level to scale back Roe dramatically, to protect the unborn child at every point. A judgment of that kind might even ease the mind of many pro-choicers.

But it is virtually certain that it would also still be taken in many quarters as the overruling of Roe – and set off conflagrations in the streets of certain cities. The justices then, in sober reckoning, may come finally to this judgment:  if there is rioting in the streets whatever we do, we might as well do the full and rightful thing, and remove Roe in one decisive stroke.

The article was originally published at The Catholic Thing and may be found here.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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