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Monday, August 8, 2022

Dobbs decision shows US can be both powerful and humane

Friday’s decision in Dobbs v. Jackson Women’s Health Organization is a win for the United States, democracy, the Constitution, women and, yes, the pro-life movement in all its wild diversity and unrelenting spirit — as well as for human rights movements overall.

The Supreme Court’s decision overturning Roe v. Wade and Casey v. Planned Parenthood is a win for the United States, which is now no longer one of the very few countries in the world that allow abortion throughout pregnancy for any reason whatsoever. Yes, many states will continue to allow legal abortion under some or all conditions. But now one of the most powerful, prosperous, free nations on the globe no longer considers the “right” to destroy unborn human beings as a fundamental liberty. This demonstrates that a country can be powerful but humane.

It is a win for democracy. The Dobbs majority convincingly demonstrates that five members of the Supreme Court have no right to read their own predilections about abortion into a document that belongs to the people. The people ratified the Constitution and the Bill of Rights. At the time of the passage of the 14th Amendment – the claimed ground of the abortion right invented in Roe and Casey – and during every year until Roe, the people voted in their state legislatures to ban most or all abortions. It is impossible, then, for a Supreme Court to say that the people’s understanding of “liberty” has ever included a right to abortion that might be read into the “liberty” guarantee of the 14th Amendment. If the people want a constitutional right of abortion, they can vote to place it in the Constitution. Until then, no judge can invent one.

It is a win for human life not because Dobbs promises constitutional protection for unborn human beings, but because for the first time in 49 years, citizens have the chance to argue effectively to protect that life and to try to convince a majority of their fellow Americans. Since Roe, no such argument has been permitted a chance of winning.

It is a win for women, who have increasingly been pressured to live as if their natural ability to bear children, and their desire to rear them, are disabilities. A disability affecting their potential for education. A disability impairing their economic and employment opportunities. A disability respecting their entire social equality. No. American society – including our economy – should now be required to face the fact that women get pregnant and need help and support then and throughout their parenting. It is a scandal that so many American institutions, especially corporations, act as if all women should model the “ideal male worker” and come to the public-square free of child care responsibilities.

It is a win for the unrelenting efforts of pro-life scholars for over 49 years. This body of scholarship never simply stamped its feet and demanded that everyone adopt a moral respect for unborn life. It argued the biological case for their humanity and their right not to be killed. It argued about the history and meaning of the 14th Amendment’s “liberty” clause. It made the case that traditional judicial respect for past precedents – stare decisis – could not apply to past decisions that are egregiously wrong, legally unworkable and totally devoid of respect for the text of the Constitution, for history and for precedent. Today, the majority’s opinion in Dobbs, which relies upon this impressive trove of scholarship, vindicates these 49 years of effort. 

Finally, it is a win for the diverse and underfunded pro-life movement, as well as for every human rights movement – such as the cause of abolition – that just kept going in the face of unrelenting opposition. Millions of American women and men have brought us to this day. Whether the leading pro-life organizations or the smaller ones representing Democrats, pro-life feminists, non-violence activists, gays and lesbians, and hundreds more groups.

Despite opposition from billionaire pro-choice funders, the leading media, academia, the entertainment industry and popular culture — they never gave up. May other human rights movements take heart from this day and persist unto their own victories.

Helen Alvaré is associate dean for academic affairs and the Robert A. Levy Chair in Law & Liberty at the Antonin Scalia Law School at George Mason University.

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