Dobbs should, first of all, be celebrated — loudly, and without feeble misgivings about the disappointment of the supporters of abortion rights. It partially (and I stress partially) cured a kind of wound in our constitutional law that had festered over time, infecting and distorting not only substantive constitutional law, but also adjacent and ancillary bodies of law such as standing, procedure and remedies. Justice Alito’s opinion for the Court is entirely convincing that, taken on its own terms, the pompous claim of the controlling joint opinion in Planned Parenthood v. Casey — that the Court could call the contending national parties to settle their controversy — had not been fulfilled. Indeed Casey perversely produced all the more conflict. Casey and Roe had to be overruled to restore the body of our constitutional law to health.
Like all great opinions, however, Dobbs is rife with ambiguities and silences, and poses as many further questions as it answers — especially in light of the Chief Justice’s limited concurrence in the judgment, which means there were only five votes to overrule Roe, and even more especially in light of the startling concurrence by Justice Kavanaugh, who managed to opine, with little discernible reasoning, on an impressive range of constitutional issues, none of which were necessary to the decision of the case actually before him. How far does Dobbs go, exactly? How far can it be taken? Does it allow some version of a federal statute prohibiting abortion nationwide? Might it even support — or at least not foreclose — subsequent arguments of the sort advanced by Josh Craddock, John Finnis and elsewhere on this site, to the effect that the Constitution, rightly interpreted, recognizes an affirmative constitutional right of personhood for the unborn, and thus (at least in some circumstances) bars states and the federal government from authorizing abortion?
The majority opinion argues, among other things, that Roe and Casey “short-circuited the democratic process.” This implies that a federal statutory ban might be treated favorably at least as far as substantive due process goes, and perhaps also that the value of democracy might be constitutionally relevant to the question whether Congress would have affirmative constitutional authority to enact such a ban in the first place under the Commerce Clause, the enforcement provisions of the Fourteenth Amendment, or other sources. But of course the democracy rationale bodes ill for the Finnis-style arguments; it suggests that absent a federal statutory ban, states should be allowed to authorize abortion if they so choose. All that said, the majority opinion also takes very seriously governmental interests in protecting unborn life. It is not an enormous extrapolation to think that such protection might be read into not only the provisions bearing on congressional authority, but also the constitutional definition of personhood in its own right. Constitutional doctrine has leapt over far wider gaps in the past.
In the face of these ambiguities, I suggest a principle for interpreting the opinion, parallel to the classical legal approach to the interpretation of constitutional and statutory texts: in the face of ambiguity, and always assuming relevant jurisdictional and procedural constraints have been complied with, read and apply Dobbs in favor of the natural law, if at all fairly possible. This principle counsels that Dobbs be read and applied, where fairly possible, to maximize the scope for officials — legislators, administrators and judges — to preserve innocent life from intentional killing (which is of course different from licit medical treatment to save life, with foreseeable collateral effects). Conversely, it implies limiting the scope for officials to authorize the intentional killing of the unborn. As I have argued at length elsewhere, although the classical law leaves substantial scope for public authorities to make reasonable determinations of background principles of the natural law, and enjoins courts to defer to such reasonable determinations, the positive law should always be interpreted in light of the limits of the background principles of natural law that public authorities are charged with implementing. The intentional taking of innocent life is an intrinsic evil, and thus necessarily contrary to natural reason. Positive constitutional and statutory law should be read, if at all fairly possible, to deny public bodies the authority to license such killing. (I will bracket here the further question what judges should do if the positive law cannot be fairly interpreted to deny such authority to public bodies; the legal materials relevant here, such as the due process and equal protection clauses, are fairly susceptible of readings that comport with the natural law, for the reasons given in the sources linked above). And the law that should be read this way includes the Supreme Court’s own judgments and opinions, where, like the majority opinion in Dobbs, they are silent or ambiguous.
The intellectual vacuum that is the Kavanaugh concurrence poses no analytic problem for this approach. To be sure, the concurrence poses a serious practical obstacle to the Finnis argument, which it expressly rejects, and to a series of other claims that public officials or pro-life litigators might advance in coming months and years. (Justice Kavanaugh saw fit to opine, for example, that under the nebulous “constitutional right to travel” a resident from one state may not be barred from traveling to another state to obtain an abortion). Although no other Justice joined Justice Kavanaugh’s dicta, the problem is that given the Chief Justice’s marked swing to the left, Justice Kavanaugh seems to hold the Court’s controlling vote on these issues, at least for the foreseeable future. With Kavanaugh, there are potentially five votes from the right side of the Court; without him, one can at most count only to four.
The principle I have advanced, however, suggests that Justice Kavanaugh’s concurrence should, counterintuitively, simply be ignored. Pro-life legislation, administrative action, and litigation should, adopting a poker face, take at face value his decision to concur in the majority opinion, rather than to concur only in the judgment, and should proceed on the assumption that Dobbs authorizes favorable lawmaking and rulemaking but also does not foreclose the Finnis argument as a matter of constitutional law. Right now, it may seem difficult even to imagine assembling a congressional coalition to enact a nationwide abortion ban, or a coalition of five Justices to read the Constitution as creating an affirmative constitutional right to life. But even a few years ago, it seemed equally difficult even to imagine assembling a coalition of five Justices to overrule Casey and Roe. The limits of legal and political imagination are treacherous, and susceptible of grave bias towards the status quo. If we have learned anything from the winding path of the Court’s due process decisions over the years, it is that the interpretation of the Constitution is more fluid, more changeable through symbolic and material legislation, administrative action, litigation campaigns, and judicial appointments than (many) law professors acknowledge at any given time. Who knows what new Justices, new arguments, new statutes and regulations, and even new constitutional decisions the next presidential administration may bring?
Adrian Vermeule