I had been working on a post addressing a new abortion policy bill in Connecticut, which is headed to the governor’s desk for signature sometime this week, when Politico published the leaked first draft of Justice Alito’s opinion last night. Regarding that news, I will make only two comments. First, while it reflects a final holding (overruling Roe) that I believe most if not all contributors to I&I support, any opinion is not official until promulgated by the Court itself, and I’m not going to comment on its substance. Second, the leak should be seen for what it is—an attempt to interfere with the normal processes of an institution and to galvanize public opinion and legislative and executive officials. The leak should be investigated and the individual sanctioned appropriately.
Nevertheless, the public reaction to the draft opinion was predictable in the emotional response it has generated and the calls for court-packing, impeachment, and other politically punitive actions. That reaction points to a key conclusion—once Roe nationalized abortion policy, there is no easy way for the Court to extract itself from that issue. The great twentieth century American moral philosopher Johnny Cash once said, “How well I have learned that there is no fence to sit on between heaven and hell. There is a deep, wide gulf, a chasm, and in that chasm is no place for any man.” A final decision returning abortion policy to the states is not the end—as Connecticut shows, it is only the beginning of a new phase.
Assume that in Dobbs the Supreme Court does in fact overrule Roe but does not go further. Even in this neutral ground, will the final opinion nevertheless provide guidance that, for example, states should exercise care and concern for the growing fetus in the mother’s womb? Or, conversely, should states be cautious against infringing on the woman’s autonomy? Or, as a third position, does the Supreme Court simply punt on the moral questions and only claim to address the constitutional question?
Writing in March at First Things in “On Overruling Roe,” Professor Arkes proposes two hypothetical paragraphs that might appear in a Dobbs opinion overruling Roe. Arkes proposes a first paragraph that speaks to the child in the womb as being a “distinct life,” and that the state may gauge justifications for taking such life, just as the state may recognize justifications for taking other lives that preclude any legal approbation. Such an opinion would not take any constitutional position on abortion, but it would signal that states must grant substantial consideration of the child’s life in the womb when crafting abortion policy. But in a second hypothetical paragraph, the opinion may be studiously neutral. In that second paragraph, the Court would simply find that abortion policy is “controversial,” and that the people may once again arrive at their own “value judgments” about it.[1]
If the Court’s holding is just that Roe is overturned, why does it matter whether they further signal the importance of the child’s life? It matters because despite the seemingly fervent wish of some justices that they no longer handle abortion policy, it is inevitable that abortion will return to the Court.
States are already setting the groundwork for that clash of values. We have already discussed the Texas ban and related enforcement mechanisms, which have effectively blocked abortions 6 weeks after conception. But last week the Connecticut legislature passed a bill that Slate legal reporter Mark Joseph Stern calls “the gold standard for pro-choice legislation in the post-Roe era.” The Connecticut bill creates a right for Connecticut residents to countersue for damages any party that sues the resident for assisting in an abortion under a statute similar to Texas’. It also prevents extraditing people in Connecticut for out-of-state crimes that are legal under Connecticut law. Finally it significantly expands abortion access by allowing nurses, nurse-midwives, and physician assistants to conduct medication and aspiration abortions.
In effect, Connecticut has passed a law that sets up an interstate clash over abortion laws. There will be questions of preemption, comity, and choice of law that arise from these laws. Just as the Texas law has been picked up by red states, Connecticut’s likely will be adopted by blue states, in addition to other measures promoting or protecting abortion access that may be adopted. These conflicting laws will require lawsuits coming to the Court for resolution, and they will incentivize both parties to seek a national resolution in Congress.
Which leads us back to the question of whether the final Dobbs opinion will promote a jurisprudence that is respectful of the life of the child as well as the mother, or if it will instead dodge the moral questions. A decision that recognizes the moral issues and in part relies upon them sets a pathway for courts and legislatures to resolve the coming conflicts. A resolutely neutral decision does not, and it will only create more confusion in the interim period between Dobbs and the coming national resolution. As much as the Court may want it to be so, there is no fence to sit on between a natural law jurisprudence (whether originalist or not) that builds a pro-life defense on the underlying moral questions, and a progressive jurisprudence that resolves the same questions in the opposite direction. At some point, the Court is going to have to take a position in favor of one or the other. In between is a great chasm, in which no man can sit for long.
[1] Arkes does not propose a third hypothetical paragraph, one that preferences the autonomous desire of the woman, but one could still imagine an opinion exhorting legislators to take due care of a woman’s physical, emotional, and mental well-being while saying nothing about the child’s. Such a paragraph was already unlikely given the composition of any likely majority on Dobbs, and assuming the final majority opinion is similar to Alito’s leaked draft, that sentiment will not appear.