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Solving the Supreme Court’s Abortion Dilemma in Dobbs

Roe could be reversed in one of two strongly pro-life ways. The Court could declare that the child is a fellow human being and a person, and is thus constitutionally protected prior to birth. Or the Court could in effect encourage each state to recognize the child as one of us. The latter could well be politically preferable.

I argue here that in the upcoming case Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court could effectively defend life by empowering states rather than imposing on them by federal fiat. This strategy would avoid a constitutional crisis, yet still allow the Court to speak powerfully and compassionately of the nature and dignity of the child, and of the reasonableness of protecting both the child and the child’s mother from the violence of abortion.

The logic of Roe v. Wade was faulty but straightforward: there is an unwritten constitutional right to abortion, founded in the unwritten right to privacy. Because it is fundamental, the right to abortion can be limited only by a compelling state interest. If the unborn child were a constitutional person, or even just a living human being, a state’s interest in protecting it would indeed be compelling. However, in Roe, the Supreme Court claimed not to be convinced either of the child’s constitutional status or of its existence before birth as an actual human life. Instead, it treated the child as a merely “potential” life, all the way up to birth.

Given this logic, Roe obviously could be reversed either in a neutral way or in a pro-life way in Dobbs. The Court could simply say that there is no unwritten right to abortion after all, and therefore the states are as free to regulate abortion as they are to regulate any other medical procedure, without speaking at all about the primary victim of abortion. Or the Court could reverse the second step in Roe’s logic and say that the child is a fellow human being prior to birth, or perhaps even a person under our federal Constitution, so that states have a compelling interest in protecting the child against abortion.

Which ruling should pro-lifers hope for? Which is most likely? The answers to these questions are more complicated than they initially appear.

Affirming the Humanity—and Personhood—of the Unborn

At first glance, it seems that it would be much better for the pro-life cause if the Court would declare at least that the unborn child is a human being, if not indeed a constitutional person. In so doing, not only would the Court say that abortion can be made illegal, it would also provide a strong argument that it should or even must be made illegal.

If the Court chose this route, it could begin by calling our attention to the biological fact that all of us began our lives at conception. As we learned in grade school, we are all grown-up embryos. Those who think otherwise seem to believe—unscientifically—that the soul, or whatever we call the essence of human life, was added to us later, before which addition we didn’t fully exist. The Supreme Court would thus drop all talk of “potential life” and speak forthrightly about a state’s compelling interest to protect all living members of our species against lethal violence, from the first moment they begin to grow in the womb.

However, a Supreme Court committed to human equality would then face a dilemma. If the unborn child is truthfully recognized as an actual, not merely potential, human being from conception, human equality would seem to demand that that child also be recognized as a person and given equal protection under the Fourteenth Amendment to our Constitution. States would then have to prevent abortion with the same vigor with which they seek to prevent the killing of born members of our species. But some private individuals and public prosecutors would be highly likely to resist such a pro-life mandate by the Court. This could result in a constitutional crisis not unlike what occurred in the South for years after Brown v. Board of Education, when many denied the Court’s authority.

Can There Be Human Beings Who Are Non-Persons?

In order to avert such a crisis, the Supreme Court could be tempted to reverse just the first step in the Roe logic outlined above. It could hold merely that abortion was never a constitutional right to begin with, without needing to discuss the child’s nature or status. Or it could hold that, although the child is alive and human, not every actually existing human being needs to be considered a person under the Fourteenth Amendment. Thus, again, states that wished to continue to permit abortion on demand would be able to do so, while states wishing to prohibit abortion could also do as they wished.

Unfortunately, the Court would then be reaffirming one of the most tragic, although least discussed, aspects of Roe. Recall that prior to Roe all humans (even enslaved humans) were called “persons” by our Constitution. Roe supposed to the contrary that there can be some human beings who do not count as constitutional persons. The Roe Court created this category when it decided first that the unborn were not constitutional persons, and only then turned to the question whether they were human beings. If it had thought that all human beings were necessarily constitutional persons, it could not have concluded that the unborn were not persons without first considering whether they were human beings.

 

As of now, the category of human beings who do not count as constitutional persons exists but remains empty. The Roe Court that created it did not put the unborn there, because it found them not to be living human beings in addition to not being persons. But if the Dobbs Court calls the unborn human beings and yet non-persons under our Constitution, future rulings would be more likely to call other human beings non-persons as well. That possibility could threaten many people who are now disabled, such as those with Alzheimer’s, as well as the rest of us, inasmuch as we might someday become similarly disabled.

Can the Court find a way to be forthright about the living humanity of the child without provoking a constitutional crisis? And can it affirm the humanity of the unborn without saying that some human beings are non-persons under our federal Constitution?

The German Approach: Constitutional Recognition, But No Criminal Punishment

The German Constitutional Court came up with a very elegant solution to this problem back in 1975, one it further clarified in 1993. The unborn child was recognized to have its own (eigenes) constitutional right to life throughout pregnancy, but the state was not required to protect the child via criminal punishment of abortion providers. Instead, the Court required only that the legislature mandate and monitor the effective protection of unborn life.

The German Court specifically endorsed requiring a woman contemplating abortion to receive counseling informing her that abortion kills someone with a right to life. It also recommended that extensive state-backed help be available for her and her child. The Court further endorsed requiring a three-day wait before any abortion could take place. Abortion would remain generally unconstitutional and illegal, but it would not be penalized if it takes place after the prescribed counseling and waiting period. The Court also forbade inaccurate, negative descriptions of the unborn child in public media (“blob of protoplasm” comes to mind).

This officially pro-life legal regime has been effective in slowing down the rate of abortion in Germany, as compared to the rate in neighboring countries. Such an approach might be hard for Americans to understand, however, because, unlike Europe, we lack a tradition of recognizing certain serious offenses as illegal without attaching penal sanctions to them (though Texas may be breaking new ground in this regard).

 

Another Way: Affirm the Reasonableness of States’ Judging the Unborn to Be Human

There is, however, another way out for the U.S. Supreme Court besides Germany’s approach. It could avoid holding that human life exists from conception, and yet offer strong support for pro-life laws, simply by saying that it is fully reasonable for a state (or federal) legislature to consider the unborn child an actual human being in danger of death. It already said something similar in Gonzales v. Carhart: “The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” A state’s reasonable respect for life, the Court could say, would give it a sufficiently compelling interest to protect that life vigorously. If the state wished, such protection could include punishing abortionists criminally and even recognizing the child as a full legal “person”—from conception—under the state’s constitution.

In other words, the Court could say that it need not reach and decide the question whether the unborn child actually is a fellow human being in order to uphold Mississippi’s law in the Dobbs case before it. It need only affirm that such a judgment by a state like Mississippi is quite reasonable. Given that reasonable judgment, the state in question has a compelling interest in protecting that child by law (and also in recognizing the unborn child’s personhood in its state constitution).

 

Thus the Court could affirm the reasonableness of judging the unborn to be human and alive, affirm the protection of the vulnerable to be a compelling state interest, and yet not invoke the Fourteenth Amendment to require protection of children against unequal treatment in pro-abortion states. Under this ruling, the Court would leave the states to draw that reasonable conclusion rather than the Court itself drawing it. New York and California could still decide that people are not human or alive until they are born, and so could continue with as little restriction on abortion as they like. This would set the stage for a long struggle in the legislatures, but the educational effect of the Court’s ruling would give pro-lifers a large boost.

An instant victory—one that would end all abortion nationwide—could provoke backlash so severe that the Court’s legitimacy and power could face irreparable damage. The strategy I propose, on the other hand, would avoid a constitutional crisis; it would allow the Court to speak powerfully and compassionately about the nature and dignity of the child; and it would allow it to declare the reasonableness of protecting both the child and the child’s mother from the violence of abortion. Then, many years from now, after a successful outcome to the political debate that must still come, the Court could finally recognize that child to be fully one of us: a fellow human being with a constitutional right to life.

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