On June 24, 2022, the Supreme Court issued its long-awaited decision in Dobbs v. Jackson.[1]
1. Dobbs v. Jackson, 597 US __ (2022).
By a 6–3 vote the Court not only upheld the constitutionality of a Mississippi law that prohibited abortion after the fifteenth week of pregnancy, but by a 5–4 vote, the Court also overturned the prior precedents of Roe v. Wade[2] and Planned Parenthood v. Casey.[3]
2. Roe v. Wade, 410 US 113 (1973).
3. Planned Parenthood v. Casey, 505 US 833 (1992).
In overturning these precedents, the Court found that the constitution contains no right to abortion, thus returning the issue of abortion to the elected representatives of each state.
Christians should praise God with thankfulness for the overturning of nearly fifty years of flawed legal precedent that it is estimated has resulted in the death of over 63 million innocent human lives since 1973.[4]
4. See National Right to Life Committee, Abortion Statistics (Jan. 2022).
But not all celebrated this decision. In fact, it was (and is) a common argument within the political left that the overturning of Roe and Casey was fundamentally at odds with “public opinion,” “democracy,” or that it stripped Americans of a “fundamental right.”
The Editorial Board of the New York Times summed up this position well:
The insult of Friday’s ruling is not only in its blithe dismissal of women’s dignity and equality. It lies, as well, in the overt rejection of a well-established legal standard that had managed for decades to balance and reflect Americans’ views on a fraught topic. A majority of the American public believes that women, not state or federal lawmakers, should have the legal right to decide whether to end a pregnancy in all or most cases.[5]
5. See: June 24, 2022, The Editorial Board, The Ruling Overturning Roe Is an Insult to Women and the Judicial System; The New York Times.
Is the New York Times correct? Did the Dobbs decision overturn a “well-established legal standard” that undermines “public opinion”? Is this some sort of totalitarian affront to the rule of law?
For those who care about such questions—and we all should care about such questions— I will demonstrate how Dobbs is both a “pro-liberty” and a “pro-rule of law” decision. Going forward, this decision is one that does not restrict liberty. Instead, it empowers the American people by protecting the principle of federalism and the underlying of balance of power between the federal government and state governments.
Separation of Powers in the U.S. Constitutional System
Before we consider Dobbs, let’s first consider the balance of powers within our constitutional system, particularly the horizontal and a vertical separations of government power.
Horizontally, the federal government is divided among three branches[6]—the legislative, executive, and judicial.[7] The federal government was created with multiple divisions of power, ultimately, because the Founders likened the concentration of government power to tyranny. In Federalist No. 47,[8] James Madison noted:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
6. Most state governments (in some varying degrees) have a similar structure within their own state governments structures.
7. Let alone the even further division of power within the legislative branch, the United States Congress.
8. The Federalist (also known as the Federalist Papers) is a series of 85 essays written by Alexander Hamilton, James Madison, and John Jay. Their original purpose was to defend the proposed U.S. Constitution and encourage its ratification by New York. Today, they are an important source used to help understand the Founders’ original intent for the U.S. Constitution.
Vertically, power is divided between the federal government and each of the state governments—a principle known as “federalism.” In Federalist No. 45, James Madison outlined the purpose of federalism:
The powers delegated by the proposed Constitution to the Federal Government are few and defined. The powers which are to remain in the States Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which the last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvements, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.
Ultimately, the states—not the federal government—are supposed to be the central deliberative bodies of the people with the most accountability and (unlike the federal government) a better understanding of the local community’s needs. This is the very embodiment of the Tenth Amendment to Constitution.
The Fourteenth Amendment and “Fundamental Rights”
But if the States—and not the Federal Government—were to be the central deliberative bodies within the United States, then how did the Supreme Court determine in Roe and Casey that abortion must be protected in all fifty states?
To answer that question, we need to briefly unpack the “substantive due process clause” of the Fourteenth Amendment (1868), which was used as the underlying reasoning behind Roe v. Wade.
Section 1 of the Fourteenth Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[9]
9. Emphasis Mine.
Traditionally, “due process of law” means the government must follow proper procedural protections (like the right to an unbiased judge or the right to an attorney) before it can take away a person’s life, liberty, or property. However, the Supreme Court has broadly interpreted the “due process” clause to mean more than just procedural protections; it has also construed the term “liberty” to comprise the protection of so-called “fundamental rights”.
Fundamental rights are not specified in the Constitution so who determines which rights are “fundamental”? Without any textual basis in the Constitution, the Court decides. Ultimately, the decision in Roe v. Wade was the Supreme Court’s “discovery” of the right to an abortion as a “fundamental right” protected by the Fourteenth Amendment.
To justify this determination, the Roe Court cited an alarming view put forth by Justice Frankfurter:
Great concepts . . . like . . . ‘liberty’ . . . were purposefully left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who found this Nation knew too well that only a stagnant society remains unchanged.[10]
Ultimately, it was experience or the subjective judgment of unelected judges—not constitutional textual basis or historical or traditional evidence—that was the underlying basis for Roe (and so also Casey).[11]
10. Roe cited this quote as justification for its substantive due process analysis from a prior quote from Justice Frankfurter in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (dissenting opinion).
11. In A Christian Manifesto, Francis Schaeffer astutely noted that the Roe is ultimately a reflection of how “ideas have consequences.” For Schaeffer, Roe was a shift towards “situational law.” But for Schaeffer the law is ultimately an application of the underlying shifts in the adoption of both liberal theology and consequently secular philosophy. Schaeffer noted: “I used the Supreme Court abortion case as the clearest illustration of arbitrary sociological law . . . that is a small group of people decide arbitrarily what, from their viewpoint, is for the good of society at that precise moment and they make it law, binding the whole society by their personal arbitrary decisions. But of course! What would we expect? These things are the natural, inevitable results of the material-energy, humanistic concept of the final basic reality” (A Christian Manifesto, 48).
Supreme Court’s Decision in Dobbs v. Jackson
Now, let’s turn to the Dobbs decision.
Much could be written of Justice Alito’s detailed and carefully crafted opinion in Dobbs, but first item to note is that the Court immediately determined that the Fourteenth Amendment does not explicitly or implicitly protect abortion:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.
This holding immediately returns the issue of abortion to the States, which is, contrary to the New York Times editors, a victory against the “anti-democratic” consequences of “Roe.” Justice Alito carefully points out that Roe actually struck down the majority of state criminal abortion laws:
This overwhelming consensus [of states that criminalized abortion] endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 states—still prohibited abortion at all stages except to save the life of the mother . . . And though Roe discerned a ‘trend towards liberalization’ in about ‘one-third of the States,’ those States still criminalized some abortions and regulated them more stringently than Roe would allow.
And while Dobbs returned the issue to the states and thus curtailed the power of the Court, we should be alarmed by the Justices who nonetheless view themselves as the arbiters of a continuously evolving law. Writing for the Dobbs dissent, Justice Breyer writes:
The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of ‘liberty’ and ‘equality’ for all. And nowhere has that approach produced prouder moments, for this country and the Court.
Putting abortion aside, the ability for a Court to construe “open-ended words” to newly apply to areas outside of legislation or the meaning of our founding documents is the very epitome of judicial activism and tyranny. It’s ultimately why the Supreme Court’s decision in Dobbs is so important—not only for the protection of human life, but also for liberty.
Justice Thomas’ Cautionary Warning of Future Substantive Due Process Analysis
While the Dobbs returned the issue of abortion to the states, the Court used “substantive due process” clause analysis in its determination. Justice Alito notes:
That [the Due Process clause] provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’[12]
12. Justice Alito is citing a case known as Washington v. Gluckberg, 521 U.S. 702, 721 (1997). In Glucksberg, former Chief Justice Rehnquist used the “deeply rooted in history and tradition” analysis to argue that there was no fundamental right to euthanasia in the constitution.
With that groundwork, Justice Alito then went through a very detailed historical analysis to argue that abortion was not “deeply rooted in this Nation’s history and tradition” and not “implicit in the concept of ordered liberty.”
By requiring “fundamental rights” not mentioned in the Constitution to only those “deeply rooted” in history, the Dobbs Court is intending to constrain the ability for the Court to abuse “substantive due process” analysis in the future.
And while any court should be commended for restraint, Justice Thomas rightly raises his longstanding concerns with any use of a legal doctrine that can arbitrarily determine unenumerated rights:
As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution . . . The notion that constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credibility for even the most casual user of words.
Justice Thomas continued with an important insight:
Substantive due process exalts judges at the expense of the People from whom they derive their authority. . . . In practice the Court’s approach for identifying those ‘fundamental’ rights ‘unquestionably involves policymaking rather than neutral legal analysis . . . The Court divines new rights in line with ‘its own, extraconstitutional value preferences’ and nullifies state laws that do not align with the judicially created guarantees.
Justice Thomas seemingly did not have the votes to overturn use of “substantive due process,” but as we nonetheless celebrate Dobbs we should also heed Justice Thomas’ warnings of the ability of a future court to arbitrarily exercise this power.[13]
13. This is a major reason why Christians should carefully cast their votes for candidates for the U.S. Senate and for President after considering the type of judicial nominees the candidate will nominate (President) and vote to confirm (U.S. Senator).
Conclusion
The overturning of Roe and Casey is not only a victory for unborn life, but it also vindicates the liberty of the American people and restores the important balance of powers.
And while we celebrate Dobbs, we know that abortion is still legal in the United States and this victory is but the beginning of a longer effort to protect innocent human life within all levels of government.
In my next essay, I will reflect on how Christians now live in a post-Roe world and consider what should be included a pro-life strategy beyond Dobbs.
