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Justice Alito’s opinion laying out why “Roe and Casey must be overruled” is a masterpiece of dignified but nonetheless devastating criticism. He makes a formidable case not only for reversing Roe argument but for crowning it as the worst reasoned opinion in the Court’s history. Alito surely makes a better case than John Ely did for his memorable put-down of Harry Blackmun’s handiwork: that Roe was “not constitutional law and gives almost no sense of an obligation to try to be.” Alito quotes this “infamous” line in Dobbs. Now he can own it.

The leading competitor mentioned in Dobbs for this obloquy is Plessy v. Ferguson. According to the Dobbs Court, Plessy (like Roe) was “‘egregiously wrong’ on the day it was decided” and “should have been overruled at the earliest opportunity.” When the Court finally abandoned Plessy nearly six decades later in Brown v. Board of Education, however, the Justices gave it a more respectful burial than Roe got in Dobbs. Brown never said that Plessy was wrong on the day it was decided. Dobbs is sure that the Fourteenth Amendment’s history gives no quarter to abortion. Brown claimed that the evidence about segregated schools was “inconclusive.” Brown’s rationale for reversing Plessy turned instead upon the gradual evolution of public education into a uniquely valuable opportunity, and upon mid-20th century social scientific evidence of the psychological effects of segregated schools upon black kids’ educational achievement.

In other words: Dobbs establishes that Roe was a singular constitutional catastrophe.

The Dobbs Court signals unmistakably that it will uphold any restriction upon abortion availability, up to and including a total ban on it, so long—it would seem—as there is a life-of-the-mother exception included in it. That caveat (and possibly an additional one for serious risk of grave physical injury) arises not from anything expressly stated in the opinion. The caveat arises instead from ambient background legal norms governing the justified use of lethal force by anyone (including a pregnant woman) against a threat of being killed or gravely injured by anyone else (including an unborn child who, though incapable of intentional action, is nonetheless capable in rare cases of effectively, though innocently, causing severe harm to his or her mother).

What does Dobbs portend for a state law that bans abortion without the caveats? It is impossible to say for sure. At least in the early stages of pregnancy, such a law might lack a “rational basis,” because the exceptionless application of it would sacrifice an endangered mother for no apparent benefit to an unborn child who could not survive the mother’s demise anyway. For later-stage problem pregnancies, enforcing an exception to otherwise applicable norms of justification in cases of pregnancy would raise plausible sex discrimination objections.

In any event, Dobbs works a revolution in our constitutional law about abortion. It is a monumental step forward in securing the lives of our unborn brothers and sisters.

By one important metric, though, Dobbs falls short. It does not hold that the unborn are “persons” within the meaning of the Equal Protection Clause. Of course, no informed observer expected the Court to hold that the unborn are constitutional “persons,” notwithstanding the superb amicus brief of Professors John Finnis and Robert George arguing that it was the original public understanding of the Fourteenth Amendment. The Dobbs Court never explicitly addresses their arguments, although it does notice their brief in other respects. That is surprising, and disappointing. It was not wistful to expect some favorable attention to the point, some incitement to develop it in future litigation.

I have written elsewhere (here and here) about how Dobbs, in the course of demolishing “viability,” nonetheless lays the foundation for substantial constitutional protection of unborn children. These dots in Dobbs waiting to be connected later show how permissive abortion laws lack a “rational basis.” The critical defect in such laws would be that they depend upon drawing arbitrary distinctions when it comes to the moral status of fetuses according to the stages of pregnancy, and between babies born and those still in utero.

Here I would like to suggest a different path towards constitutional protection for unborn children, notwithstanding the Dobbs Court’s evident intention to uphold symmetrically (if you will) the abortion-restrictive laws of a Mississippi and the abortion-permissive laws of a California. The symmetry is sincerely presented, I think. But it is more apparent than real.

Dobbs declared that henceforth the Court would subject regulations of abortion to “rational basis” scrutiny, in light of (with internal citations omitted) legitimate [state] interests [which] 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.

Now, nothing in Dobbs suggests that by “maternal health and safety” the majority means anything like a requirement to permit abortions thought to serve “health” in the unbounded sense used in Doe v. Bolton, which encompassed all aspects of a woman’s well-being as she understands it. Thus, these are all bases for restricting abortion access or for prohibiting it entirely. To the obvious objection that permitting is simply the other side of the coin of restricting, the answer is: yes, in a way. But that does not mean that a challenge to an abortion restriction by, say, an abortion clinic should be subject to the same level of judicial scrutiny as a challenge to a permissive abortion law by, say, the father of a child whose mother seeks an abortion.

The Dobbs Court never squarely addresses therefore the question, what are a state’s constitutional obligations when it considers whether a living human being is a person? What are a court’s constitutional responsibilities when called upon to review a state’s decision to treat a living human being as a non-person?

It is uncharted territory. No other constitutional case has presented the question of human-beings-who-may-be-persons, and how to think about the constitutionality of laws exposing them to being killed in circumstances that would be criminal if anyone else were the victim. The many constitutional cases involving life and death, such as Cruzan (about an asserted right-to-refuse treatment necessary to preserve life), capital punishment cases, and cases involving the justified use of lethal force by police officers, do not raise the question left lurking in Dobbs, since all parties to those other cases have granted the personhood of the relevant individuals. Even Dred Scott recognized that the case involved enslaved persons. In Roe, Justice Blackmun diverted the Court from confronting the question about the constitutional value of a human life. He accomplished this diversion, first, by holding that the life to be protected was not that of a constitutional “person.” Second, he coined the empty term “potential life,” which he then substituted gratuitously for Texas’ urgent pleas on behalf of unborn human beings. It turns out that overruling Roe brings the Court face-to-face with a complex of important questions which the Court never faced before 1973, and which it has suppressed ever since.

Dobbs fairly describes its rational basis test as highly deferential. “A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” But it rather seems that the burden of proof in a case testing an abortion-permissive law should be placed upon the party arguing the improbable proposition that some human beings are not persons. It seems too that the benefit of any doubt should be given, not to the state sanctioning the destruction of those whom there are good grounds to think are human persons, but to those human beings cum persons whose lives are being destroyed.

In addition: why shouldn’t there be a lower hurdle for legally restricting an elective choice to pursue one’s not-vital interests, and a higher hurdle for legally permitting foreseeable immediate irreversible harm to vital interests? This question does not presuppose the presence (or absence) of a Fourteenth Amendment “person.” Its premise is that we have two human beings—mother and child—each with vital and non-vital interests. And no moral principle is more firmly embedded in our criminal law, or more important to the maintenance of basic justice, than the law of justification which sharply subordinates non-vital but nonetheless important interests of one human being to preserve the life of another.

The Dobbs Court never explicitly addresses, and nowhere indicates that it has implicitly considered, the most important question of justice any polity faces: who counts as a person for whom the whole edifice of positive law is brought into being? It would be uncharitable as well as unwarranted to suppose that the Justices have answered this question, especially given that their answer is the business-as-usual “rational basis” standard.

Professor Gerard Bradley,

The Federalist Society