It’s here at last. After nearly fifty years of intense protests and marches, a complex web of litigation, and a dangerous politicization of the federal judiciary, the Supreme Court has finally abandoned a legal decision that has taken millions of lives. The opinion in Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), overruling Roe v. Wade, 410 U.S 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), is here.
The opinion could not have been issued on a better day: June 24, 2022, the Solemnity of the Most Sacred Heart of Jesus, which, uniquely this year, displaced the Nativity of St. John the Baptist. June 24, which in upcoming years will resume commemorating the “greatest man born of woman” (Matt. 11:11), who leapt with joy from the womb upon meeting our yet-unborn Lord, will now go down in history as a day of monumental celebration and reaffirmation of the value and sanctity of human life.
When this case was argued last fall, we authored an article explaining its factual background, predicting its outcome, and analyzing how the various justices might approach the issues. Since that time, on May 2, 2022, a draft of the majority opinion was leaked, showing that Justice Alito—not Chief Justice Roberts—was leading a majority of the Court in a full-throated repudiation and overruling of Roe v. Wade. We had optimistically but cautiously predicted Chief Justice Roberts as a good vote—saying there was no middle ground between preserving Roe and overruling it—so it was not clear why he was not in the majority.
The history of Planned Parenthood v. Casey in 1992 also showed that Roberts’s defection would make the odds worse; a six-justice majority is better than a five-justice majority. In Casey, five justices had hinted or made clear that Roe v. Wade was wrongly decided, but when tested, three of them—O’Connor, Kennedy, and Souter—gave way and jointly authored a majority opinion upholding constitutionally protected abortion as the law of the land. What if Roberts could convince either Justice Kavanaugh or Justice Barrett to defect and join him—in whatever his opinion was? As we noted before, Kavanaugh and Barrett often side with him.
Thankfully, that did not happen. The only substantial changes to Justice Alito’s majority opinion were the addition of new sections responding to the three liberal justices’ dissent and of Roberts’s concurrence.
Dobbs v. Jackson holds that the U.S. Constitution is silent on abortion. It neither requires states to allow abortion nor requires them to prohibit it. The Constitution has nothing to say about “abortion rights,” abortion regulations, or abortion restrictions. The people of the various states, and their elected representatives, now get to decide whether and how to regulate, expressly permit, or expressly prohibit abortion.
As Justice Alito noted in his majority opinion, twenty-six states, led by Texas and Mississippi, requested that the Supreme Court overrule Roe v. Wade. The other twenty-four states, led by California, support legal, even unrestricted abortion. In essence, each group got what it wants. Texas and Mississippi will regulate or prohibit abortion, and California will allow and even celebrate it. All decisions on abortion are now up to the people.
Justice Alito’s analysis is relatively straightforward. There is not, and never was, any right to abortion in the Constitution, and abortion advocates’ arguments in favor of such a right have been weak and inconstant. Their strongest point was that Americans (and women in particular) have significantly relied for the past fifty years on the right to obtain an abortion. They also appealed to the idea that the Court’s legitimacy as an institution would decline if it were seen as overruling Roe because of political pressure. Essentially, these arguments won in Planned Parenthood v. Casey, but they lost here.
An argument that Kavanaugh stressed in his concurrence, and which we fully support, is that the opposite is true: the Supreme Court’s entry into the abortion debate severely harmed its legitimacy as an institution. This deficit can be made up for only by the Supreme Court abandoning its series of failed efforts to patch the leaks in its earlier abortion decisions, and instead exiting a debate it never should have entered in the first place.
What did Roberts want? He essentially argued that the fundamental right at issue in Roe and Casey was the “right to choose.” In other words, he argued, the Supreme Court could hold that viability (twenty-four weeks) is not the constitutionally relevant line in determining when the child can be legally protected from being killed. Rather, the line could be set somewhere earlier, so long as it does not too greatly interfere with the ability of a woman to learn she is pregnant and then have a “reasonable opportunity to choose” an abortion if she diligently pursues it. Under this reasoning, Mississippi’s fifteen-week ban would be allowed, but Texas’s six-week ban might not—because many mothers might not know they’re pregnant at six weeks. As part of his argument, Roberts noted that the vast majority of developed nations have “coalesced around a twelve-week line,” which presumably gives a woman a reasonable time to choose an abortion.
Thankfully, no other justice found this argument compelling. Rather, the other conservatives joined Justice Alito’s conclusion that this “standard” is no standard at all. Roberts, we believe, fell into the same tragic error as Roe and Casey: he wanted to follow what he perceived as an international consensus and struggled to find a justification for it.
What happens next? The Supreme Court in 1973 built on earlier cases holding that the Constitution protects the right to use contraception (Griswold and Eisenstadt) and discovered the right to abortion lurking there as well. It later relied on these same cases to find in the Constitution a right to sodomy and same-sex marriage (Lawrence and Obergefell). Constitutional originalists and conservatives would like to see these cases overruled as well—and they are on the minds of all legal scholars and theorists. In this respect, the majority opinion authored by Justice Alito is clear: quoting Casey, he repeatedly states that this opinion has no effect on those cases, for the simple reason that “‘abortion is a unique act’ because it terminates ‘life or potential life.’” He even goes so far as to criticize the dissenting justices for “stok[ing] unfounded fear that our decision will imperil” gay rights or access to contraception.
This is pretty strong language—and we would take the justices at their word, at least for now. Justice Thomas in his concurrence is correct that the reasoning of Justice Alito’s majority opinion puts all of those cases at risk. The dissent is correct about that, too. But the Supreme Court gets to decide what cases to take up, what cases to overrule, and when. Justice Gorsuch—who joined the majority here—shocked many when he wrote the majority opinion in a case that abandoned the logical understanding of Title VII’s ban on sex discrimination and made it illegal for an employer to terminate (or refuse to hire) an employee based on sexual orientation or transgender status. Justice Kavanaugh, in his concurrence in Dobbs v. Jackson, stressed that the current Court “does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion.”
The Court is conscious of how it is perceived by all of us, and might even be described as a little vain. We think the Court, protective of its own legitimacy, will tread carefully. It will not overturn Obergefell tomorrow. Nor will it hold, tomorrow, that the Fourteenth Amendment, which says, “Nor shall any state deprive any person of life, liberty, or property, without due process of law,” applies to unborn children. But we do not think it will take another fifty years for the Court to revisit its decision in Obergefell, or to eventually hold that the Constitution protects the unborn from intentional destruction.
Today, we celebrate—but tomorrow we continue the good fight. Ultimately, as one good priest recently observed, God wants us to do more than change bad laws; he also wants us to change hearts. This is undoubtedly the more profound and complex task—and one that requires our collective efforts.