The parties’ briefs are in, oral argument is concluded, and Dobbs v. Jackson Women’s Health Organization is submitted to the Court for decision. The justices will convene today for their initial votes on the case, but the behind-the-scenes wrangling has likely only just begun. In the meantime, we wait.
From our perspective here at Ius & Iustitium, the oral argument provided good news and bad news. The good news is that Justices Kavanaugh and Barrett did not appear interested in a “compromise” that upheld Mississippi’s 15 week ban on abortion (with exceptions for health of the mother) but left the constitutional right to abortion in place. Chief Justice Roberts repeatedly raised such a position in questioning, but neither Kavanaugh nor Barrett touched on it, and the parties themselves dismissed it. Mississippi Solicitor General Scott Stewart stuck to the position of overruling Roe and Casey completely, while the clinic’s counsel Julie Rikelman refused to budge from viability as the only “logical” point at which a state could prohibit a woman from aborting her unborn child. While perhaps somewhat surprising as a litigation strategy, it is probably the right call. As Sherif Gergis has been arguing for months, any rule that attempts to uphold the Mississippi law while also preserving some constitutional right to an abortion would only be more incoherent and indefensible as constitutional law than the status quo. Perhaps the liberal justices may persuade Roberts and one other justice to take that position behind closed doors, but at oral argument that seemed unlikely. Thus, the only question that would remain is whether at least two of Roberts, Kavanaugh and Barrett will agree with Justices Thomas, Alito, and Gorsuch that Roe must go, and stare decisis does not save it.
The bad news is that the kabuki theatre of originalist jurisprudence failing to account for the immorality of hundreds of thousands of aborted children every year remained firmly in place. Stewart suggested this gruesome fact was just a “hard question” that should be left to the people to legislate. Meanwhile, the position that unborn children are persons under the 14th Amendment, so ably presented in originalist form by John Finnis, Robert George, Joshua Craddock, and others both before the Court in amici briefs and in more popular forums, was raised only to be dismissed. Justice Kavanaugh—himself a self-proclaimed originalist—sought Stewart’s confirmation that he was not arguing the Supreme Court “somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion,” and Stewart promptly agreed. No, fetal personhood is not on the table now, only a seeming “neutrality” that will result in a patchwork of state laws ranging from complete abortion bans to abortion at will through full term of the pregnancy.
On the one hand, as previously discussed here last spring, that is probably the strategically correct decision for Stewart right now. The Court as currently constituted does not have 5 votes for fetal personhood. Even so, the fact that fetal personhood is actually a credibly presented alternative option this time could be the difference between failure in Casey and success in Dobbs. In 1992, overruling Roe meant giving conservatives what they wanted; in 2021, overruling Roe can be framed as the “neutral” position. At times Justice Kavanaugh seemed to be openly setting up just such an opinion. This disagreement in strategy was the cause of some controversy earlier this year, with some originalists arguing the fetal personhood position was wrong in principle. Reliance on a self-limited strategy to merely overturn Roe left the Court with less room to maneuver 30 years ago. It might be that making fetal personhood a viable foil to the “neutrality” of silence at least gets us to neutrality this time, rather than the compromise that Roberts was probing.
On the other hand, even if the Court overrules Roe, we should not think the battle is over; rather, it will have only intensified. Yes, many states stand prepared to immediately ban or severely restrict abortion in such an eventuality. But many others, including such populous states as California, New York, and Illinois, stand to broaden access to abortion. The resulting patchwork quilt of laws, with women in red states trying to travel to blue states for abortions, will only provide justification for a federal solution by Congress, which will not be a total ban. In that regard, Republican Senator Susan Collins has already stated she would support a national codification of the Roe framework.
This is where the failure to truthfully reflect in conservative jurisprudence the moral monstrosity of abortion betrays its weakness. The progressive argument for abortion, with all its logical inconsistencies and the moral failure of arguing that a fetus is not worth protection, is at least not afraid to suggest other moral foundations. Progressives claim to protect the woman’s health and economic well-being, and these are indeed important, good things worth protecting—but not at the cost of destroying the unborn child’s life. For conservatives, the natural law should provide our own moral framework and legal foundation, but if we do not rely on it in defending the right of children to life in state legislatures and courts in years to come, we will not succeed in truly ending abortion in our country. Justice Kavanaugh suggested the Court should not be “forced . . . to pick sides” on the issue of abortion. The reasoning behind such a declared silence by the Supreme Court would not be a neutrality of moral indifference but rather moral cowardice, a refusal to pick a side reminiscent of the neutrals chasing the whirling banner in the vestibule of Dante’s Inferno.
In any case, as good as the originalist fetal personhood argument is, it only works at the federal level. While litigants in future disputes will not be prohibited from raising the unconstitutionality of an abortion provision on the grounds of the 14th Amendment, the Court’s refusal to pick it up here would not bode well for a federal constitutional challenge. In that broader 50 state fight following any overruling of Roe, the fight will be over state constitutional law in state legislatures and courthouses, who would be free to take either a stronger stance on abortion or grant a right to abortion in lieu of the lost federal right. Without the fetal personhood originalist argument readily usable in such contexts, the only morally persuasive way forward is not through a studied neutrality or reliance on state constitutional texts—it is through adherence to the foundations of natural law. If we do not rely on such a moral backbone in our own legal reasoning to combat the false morality of the progressive position, we may have sown the wind of one limited victory, only to reap the whirlwind of dozens of future defeats.
