‘No one believed abortion was constitutional’

Hadley Arkes soberly assesses the Dobbs decision in a letter in the Wall Street Journal:

The majority in Dobbs sought [like the dissenters in Roe] also to avoid speaking those key words about the human standing of the child, though it would have been no strain to speak them.

Following “conservative jurisprudence,” the court held back from pronouncing any judgment on the moral substance. That is why Justice Brett Kavanaugh could write that “many pro-life advocates forcefully argue that a fetus is a human life”—as though there has been no long-settled, empirical truth on this matter, found in all the textbooks of embryology and obstetric gynecology. If the court had set down those simple, key words, it is hard to imagine that your editorial board could offer a warning to “those who believe life begins at conception.” Clearly, there are people who affect to “believe” that pregnant women carry living, growing offspring that may not yet be human. The editorial urges pro-lifers on to persuade these people, but on the anchoring premise that there is no ground of truth on which to test the arguments.

The court, in Dobbs, overruled Roe, and I have been working in that cause for 49 years. But Roe also changed the culture. It transformed abortion from a thing to be abhorred, condemned and discouraged into a thing to be deeply approved, even celebrated and promoted. It would be a folly to think that Dobbs did anything to impart moral conviction or momentum to the pro-life side as it seeks to rescue even a handful of lives from the 800,000 annual U.S. abortions. As we survey the debris from Dobbs, I wonder whether some of us came to hate Roe v. Wade more than we hated abortion itself.

I was speaking with someone in their late 70s recently about the Supreme Court’s decision to reverse Roe v. Wade. This person asked me why the Court didn’t go further in Dobbs—why the Court didn’t rule to the effect that abortion was unconstitutional, and in fact not a matter for states.

“No one,” this person said, “believed abortion was constitutional prior to the Supreme Court deciding it was in Roe.”

Yet today, a majority of conservative justices on the U.S. Supreme Court appear to believe what those seven pro-abortion justices who imposed Roe believed: that the constitution permits abortion.