[This post was originally published at the Human Life Review’s NewsWorthy blog.]
The goal the pro-life movement has worked and prayed for over the last half-century has finally been accomplished. The Supreme Court has finally overturned Roe v. Wade and Planned Parenthood v. Casey.
Here is the money quote from the majority opinion, authored by Justice Samuel Alito: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Thanks to Dobbs, courts will no longer hold laws protecting unborn children to the arbitrary and subjective “undue burden” rule of Casey. Courts will instead be considering whether laws have any rational relationship to a legitimate government interest. That’s the “rational basis” test, which is the most deferential to legislatures.
Many states have recently passed laws that give broad protection to unborn babies, and others will undoubtedly follow. Some states still have pre-Roe laws on the books that may spring back into life. Under Dobbs, the tables have been turned, and it will be much more difficult for pro-abortion advocates to convince courts that those laws lack any conceivable “rational basis.”
We can immediately see the likely result of Dobbs by looking at two recent Supreme Court cases that struck down health and safety regulations for abortion clinics, June Medical Services L.L.C. v. Russo (2020) and Whole Women’s Health v. Hellerstedt (2016). Both laws were struck down under the Roe/Casey “undue burden” standard, in decisions where the Court basically second-guessed every aspect of the legislation’s purpose and effect. In a post-Dobbs environment, those laws would be easily upheld under a “rational basis” test that defers to a state’s interest and method in regulating medical practice.
Dobbs changed the rules only for the Federal Constitution, which means that state constitutions will now be a major field for litigation. A significant danger is if state courts declare that abortion is a “fundamental right” under their state constitutions. Some states, like New York, have already done so. That means that courts would subject any law affecting abortion to the highest level of review, called “strict scrutiny.” Under that standard, the government has the burden of showing that the law is narrowly tailored to achieve a compelling state interest. Most laws that receive strict scrutiny are found to be unconstitutional.
So the battle in the states will be both legislative and in litigation.
We also have to make sure to dispel some of the myths about Dobbs, which were already circulating in advance of the decision. Dobbs also did not make abortion illegal in most of the country. Unfortunately, a majority of abortions take place in states where it will continue to be not only legal, but freely available. Dobbs also does not mean that women will face criminal prosecution for abortions or miscarriages. Nor did Dobbs overrule the sexual revolution – there is nothing in the decision that would support a push for laws against contraceptives or same-sex “marriage.”
The only bad news from Dobbs is that it didn’t correct Roe’s most tragic error. When the Roe Court held that an unborn child was not a “person,” it relied on bad history and made the same mistake as in the infamous Dred Scott decision – writing an entire class of human beings out of the Constitution. That view of history was egregiously wrong. The legal personhood of an unborn child was firmly established in the history of American and English common and statutory law.
With Roe finally out of the way, scholars and advocates can now devote more attention and effort in that direction. The predominance of originalism in current conservative jurisprudence, which looks to the original public meaning of the Constitution, provides a rich environment for the full personhood of the unborn to be developed in further litigation.
Dobbs is not the final consummation of the pro-life movement. We have a lot of work to do. We should definitely celebrate this day as a huge victory for truth and justice.
As we go forward, it may be worth recalling the famous remark by Winston Churchill during the Second World War: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
Stepping Out of the Boat 