The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.