What Dobbs Does & Doesn’t Mean

It's a decent first step, but its reasoning doesn’t allow for the next step

Opinions abound about the Supreme Court’s Dobbs ruling. Here in California, highly publicized protests feature women carrying signs that read, “Abortion on Demand, without Apology.” Nothing new, only more frantic and furious.

On my view, Dobbs is a decent first step. But its own reasoning doesn’t allow for the next step. It’s a step that justice requires: ending the abortion license’s destruction of innocent children.

Let’s start, though, with a preliminary question. How many people have read the ruling? Probably very few. The document, with appendices, runs to 213 pages. But its introductory “Syllabus” is just eight pages — easy enough homework.

Straightway, Dobbs rejects both Roe and Casey. There is no constitutional basis, it argues, either for or against abortion. Such decisions are left to the states. State legislatures better measure the will of the people.

In Dobbs, a 6 to 3 ruling, both sides argue at length about the character of settled law based on the rule of stare decisis. Both argue at length about whether overturning Roe and Casey would violate the 14th Amendment’s demand for due process. In both disputes I support the majority. Precedent is not an absolute, and due process applies to well-grounded rights. Whether abortion is such a right is the question at hand.

Both sides also argue at length about whether reversing Roe and Casey would wrongly unsettle the expectations that the longstanding abortion license has brought about. But just what expectation is at issue? Is it that we can rely on a federal license to destroy unborn children? That expectation parallels the reliance that slave owners had on a national license to own human beings as pivotal to an agricultural economy.

Nonetheless, both sides agree that they should argue on the basis of moral neutrality. Ironically, neither side will admit that neutrality is impossible. Both sides limit themselves to a policy of pure procedural justice. That is, whatever the Constitution prescribes is proper policy, and justice is its deliverance.

Of course, the U.S. Constitution allows for amendments. And so, too, does the Constitution of California and the several states. So in California we’ll be voting in November to “enshrine” a right to abortion in our constitution. But no majority, however compelling its might, is enough to make it right.

Yet, as St. Thomas teaches, law is an ordinance of reason to advance the common good, put forward by the authority who has care of the community. But it is always and everywhere against justice to kill the innocent. Any judicial license to kill the innocent betrays the common good. Any such license is a “failed” law. To borrow from Pope Francis, there can be no foundation in justice, and hence none in law, to “hire an assassin.”

History, of course, is replete with failed attempts at law. Each is an attack on justice. We need to call such abuses by name. Our shared vocation is to join Christians, from the time of the first-century Didache, in showing our neighbors that destroying preborn babies cannot be an act of love. Nor can hating those whom we do not convince.

Archbishop Carroll, the first bishop of the United States, optimistically wrote that Christians are no longer routinely brought before tribunals for the exercise of their faith. But he added that “there are still remaining many occasions of honoring it, less splendid but perhaps not much less difficult and meritorious than those of the primitive martyrs.” In this regard, Dobbs changes nothing.


Jim Hanink is an independent scholar, albeit more independent than scholarly!

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