Please register to access this FREE content.
A couple of hours ago, the Supreme Court finally released its decision in Dobbs v. Jackson Women’s Health. Thankfully, the early leak of the opinion overturning Roe v. Wade and Planned Parenthood v. Casey did not substantially alter Justice Alito’s published opinion. The Court has overturned Roe v. Wade, leaving states free to regulate abortion as they see fit. In Kansas, we must still contend with a state supreme court decision that held that the Kansas state constitution protects the right to an abortion as a fundamental natural right. Hopefully, the citizens of Kansas will overturn that decision in a vote on August 2. Alito’s published opinion remains remarkable for all of the reasons I indicated with respect to the initial leaked draft.
Nevertheless, I hope it is not too inappropriate to quibble a bit with the majority’s reluctance to forcefully indicate that there can be no fundamental right to an abortion protected by the 14th amendment because there is no such thing as a fundamental right to take the life of another human being. In distinguishing the “right to an abortion” from other so-called fundamental rights that have been recognized by the Court, the majority does strongly imply that there might be something quite wrong with abortion. They are more reluctant than the three dissenting justices to make the moral argument underlying our approach to fundamental rights protected by the Constitution. By ceding the moral and philosophical interpretations of the 14th amendment to the defenders of abortion, the majority has missed an opportunity to prepare the pro-life American public for the new political situation. In states where abortion can now be regulated, pro-lifers no longer have the luxury of making purely procedural arguments about the rights of democratic majorities to regulate abortion or purely historical arguments about the lack of recognition of a right to an abortion at the time the 14th amendment was ratified. Now, the political debate must engage the substantive moral argument against a supposed right to an abortion.
The three dissenting justices (Breyer, Kagan, and Sotomayor) do not attempt to defend the line between viability and previability as a morally or philosophically significant moment that would allow states to protect fetal life through the law. Unlike the majority in Roe v. Wade, the current justices who support a right to an abortion are comfortable referring to “fetal life” even before the point of viability. Perhaps this is an indication that the pro-choice side might be open to conceding the humanity of the unborn in the upcoming political debates over abortion and that real progress can be made in the realm of public persuasion.
Chief Justice John Roberts voted to allow the Mississippi law that restricts abortion before the point of viability, but he insisted that he did not think it was necessary to overturn Roe v. Wade. He thought that the Court should save Roe by reinterpreting the alleged fundamental right as the “right to choose” an abortion at some point in pregnancy rather than the right to unrestricted abortion before viability. It is hard not to be bitterly disappointed that Roberts was willing to go to such great lengths to avoid jettisoning the constitutional right to an abortion. His invocation of the language of “choice” also ignores the possibility that a legal regime that quietly encourages abortion as an option is one that might lead to the exploitation of the poor and marginalized by wealthy and powerful people who consider abortion a perfectly legitimate and particularly convenient alternative to the care that the political community must now offer to all women and families in difficult circumstances.
Finally, a Catholic American cannot help but note the potentially providential release of this decision on the solemnity of the Sacred Heart of Jesus. Pope Leo XIII, who raised the feast to the dignity of a solemnity in 1889, consecrated all of humanity to our Lord’s sacred heart in anticipation of the holy year of 1900. He hoped that this consecration, especially in an age of democratization, would “establish or draw tighter the bonds which naturally connect public affairs with God, [and give] to States a hope of better things.” Perhaps Catholic citizens of this nation, in particular, might take the opportunity of this feast to prepare ourselves for the political engagements yet to come by striving to imitate Christ, who Leo said exercised his jurisdiction over humanity “by truth, justice, and above all, by charity.”