The world after Dobbs

The US Supreme Court’s Decision in Dobbs v. Jackson Women’s Health is a resounding victory in the fight against the moral evil of abortion, and its impact will not be limited to the United States. It could become a game-changer for the abortion debate also in Europe, and it could also influence legal developments also with regard to many issues other than abortion.

The reason why the 1973 ruling in the case of Roe v. Wade ultimately was destined to be overturned is that it was impossible to defend not only from a moral, but also from a legal point of view. To any educated lawyer, including even many supporters of the idea that women should be allowed to have their babies killed, it was always clear that this judgment had been “an exercise in raw judicial power”, the result of political activism rather than sound and principled legal thinking. There is no “Right to Abortion” in the US Constitution, and there never was. This judgment was simply a fraud – one that cost the lives of 62 million innocent children between 1973 and now.

The Supreme Court’s decision in Dobbs, which overturns Roe, can be summarized by saying that the US Constitution is silent on abortion, leaving this matter to be regulated by State legislations. Already in the 1973 decision it was totally unclear on precisely which constitutional provision the alleged “Right to Abortion” was supposed to be grounded. While it can be argued that Constitutions protects not only rights that are specifically mentioned in it, but also some “unenumerated rights” that are implicitly contained in it, the criterion to determine whether any claimed “right” enjoys such protection is “whether that right is deeply rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’” Abortion fails both of these tests spectacularly. It was illegal nearly throughout the entire history of the United States before 1973, and nearly everywhere in the United States on the day when the case was decided. There was no long-standing tradition of abortion being legal anywhere in the US.

The immediate effect of there being no “right to Abortion” in the US Constitution is not that abortion becomes illegal throughout all 50 states, but only that states can legislate on it. Some states will adopt more restrictive, others will adopt more permissive laws. The situation will thus become more similar to the situation in Europe, where regulations on abortion differ from one country to the other. In a sense, the overturning of Roe v. Wade is only setting right an error that no European country (and, it appears, no other country than the US) ever made: the error of declaring abortion to be a “constitutional right” that was out of reach for the ordinary legislator to regulate. In fact even the ultra-liberal European Court of Human Rights, which over the last two decades has acquired a terrible reputation for its relentless judicial activism, as on several occasions confirmed that its own constitutional document, the European Human Rights Convention, does not provide for a “Right to Abortion”. Most European jurisdictions regulate abortion far more restrictively than the US State of Mississippi, which, by prohibiting abortions (only) after 15 weeks of pregnancy, triggered the litigation that finally led to the demise of Roe. In nearly all EU Member States that limit is shorter.

It appears thus that while the pro-life movement is more vigorous and better organized in the US than in Europe, the legal situation in Europe was (at least until last week) more pro-life than in the US. Might there be an inverse correlation? Is the widespread moral indifference towards abortion in the EU due to the fact that its abortion laws were not quite as extremely bad as the regime that Roe v. Wade had established for the US? Or does the difference have to do with the fact that Europe’s abortion laws, bad as they may be, go back to legislative decisions adopted by democratically elected lawgivers, whereas Roe was imposed by a haughty law court composed of nine unelected judges?

If a Constitution (or, in the case of Europe, an international Human Rights Treaty) does not provide for a “Right to Abortion”, it still remains to be seen to what extent the abominable practice is compatible with it. To the consternation of pro-lifers and to its own shame, the European Human Rights Court has never said that the European Human Rights Convention prohibits abortion, despite the Convention’s wording offering ample basis for such a finding. Likewise, Constitutional Courts throughout Europe have been rather weak in defending the Right to Life, with the notable exceptions of Germany, where the Federal Constitutional Court (so far) has maintained that the impunity of abortion does not make the practice “lawful”, and Poland, where the Constitutional Tribunal in 2020 issued a widely celebrated decision in which it declared unconstitutional a provision privileging the abortion of children with a bodily handicap. The difference between Europe and the US is, however, that nearly all European countries have explicit constitutional provisions that explicitly recognize everybody’s Right to Life, whereas the US Constitution does not comprise such a provision. But who knows? Perhaps the Right to Life is one of the “unenumerated rights” that, being deeply rooted in the Nation’s history and tradition and constituting an essential component of ‘ordered liberty’, are implicitly recognized and protected? Such implicit protection certainly is more plausible for the Right to Life than it ever was for a “Right to Abortion”.

It is therefore clear that litigation on abortion will continue to reach the US Supreme Court. It suffices to consider two extreme scenarios: one, in which a (conservative-leaning) state prohibits abortion even in cases where the continuation of the pregnancy might put the pregnant woman’s life at risk, and one in which a (left-leaning) state allows abortion even under a particularly gruesome procedure (so-called “partial birth abortions”, or even goes as far as allowing, if the baby survives the procedure, to withhold all help and let it die even though it has already left the mother’s womb. Would the US Constitution really be totally silent on both of these cases, and would states really be left free to legislate however they want? It is more likely than not that despite the ruling in Dobbs, according which “the authority to regulate abortion is returned to the people and their elected representatives”, the Supreme Court would find that this authority is not limitless. But in both cases, the basis for the Court’s intervention would not be “privacy”, but the insight that the Constitution implicitly recognizes a Right to Life both for the pregnant woman and her child.

The assertion that states have the right to regulate abortion however they like cannot be the last word. There is only one correct and morally coherent way of regulating abortion, and that is to outlaw it in all cases except when the pregnant woman’s life is at risk. This is the goal that must now be pursued in America.

Before we consider the potential effects of the demise of Roe on issues other than abortion, let us briefly look at the various concurring and dissenting opinions that were appended to the Dobbs judgment.

The most insignificant of these is the concurring opinion of Justice Kavanaugh, who simply tries to tell liberals that the Dobbs judgment is not quite as terrible as they might think, because it really, really concerns only abortion and nothing else. As a consolation prize he also offers the (completely unasked-for) view that states will not have the right to prevent abortion-seeking women to travel to other restrictions.

This way of expressing legal opinions that are not needed to decide the case at hand is precisely what Chief Justice John Roberts warns against in his concurrence. And he is certainly right in saying that a somewhat more narrow judgment might have been possible, one that would have left Roe v. Wade intact and nonetheless upheld Mississippi’s prohibition of abortion after 15 weeks of pregnancy. Apparently the Chief Justice, whose opinion is very well argued, would have preferred a decision that acknowledges some kind of a “Right to Abortion”, one that leaves a woman the possibility to abort her child within a reasonable period during the early stages of her pregnancy. It transpires that he finds a limit of 15 weeks is sufficient time to make that decision, but apart from that his opinion his characterized by a total lack of a sound theory regarding which kind of limitation could be deemed reasonable, and on which grounds. Maybe this is why his approach was followed by none of the other judges. He also fails to understand that such a decision would have postponed the demise of Roe only by a week or a month: some states already have statutes in place that restrict abortion to the first six weeks of pregnancy – a restriction that already leaves very little time for making the decision. The Court would have had to either reaffirm or overturn Roe at the latest when having to rule on the constitutionality of such a law, and it is certain that the ruing would then not have been different from what it was in Dobbs. So, what would have been the advantage of waiting.

The dissenting opinion of Justices Sotomayor, Breyer and Kagan is highly significant for another reason: it unwittingly supports the majority’s decision to overturn Roe through the total absence of any useful argument as to why Roe should be considered to have been correctly decided. If even three highly qualified Supreme Court Justices who are known for their political stance as supporters of abortion rights cannot find such arguments, the reason must be that there is none. Instead, their only argument is that precedent must not be overturned light-handedly – irrespective, it seems, of just how bad that precedent might be. It is the poverty of sound legal argument that is impressive in this dissent.

The three dissenters paint a dramatic picture of how many other newly discovered “constitutional rights” will come under fire once that the “right to abortion” has been overturned. In this regard, there is every reason to agree with them: rights such as the “right to sodomy”, the “right to sodo-marriage”, or the “right to have access to hormonal contraception” are cut of the same cloth as the “right to abortion”, and the same reasons that have lead to the demise of Roe must logically also lead to their being overturned once they are challenged, no matter what the majority opinion says. This creates a bizarre coalition between the three dissenters and Justice Thomas, who makes the exactly same affirmation, with the sole difference that he rejoices at the prospect. It will be interesting to see what the Dissenters (only Sotomayor and Kagan, as Breyer will retire from the bench) will do once any of these issues actually reaches the Court: will they vote to overturn the controversial Obergefell v. Hodges Decision, accepting that the precedent set by Dobbs obliges them to do so? Or will they suddenly discover that after all there is no link between the one and the other?

The concurring opinion by Justice Clarence Thomas is without any doubt the most far-sighted and significant of all the separate opinions. Thomas is very candid in saying that the Dobbs decision has not only overturned Roe, but it undermines the entire edifice of “substantial due process”  and “privacy rights”, the flimsy theory that was quickly cobbled together solely for the purpose of legalizing abortion What this doctrine essentially says is that “due process” can be read as comprising rights other than procedural rights, i.e. substantial rights: in other word, if the original intention of the “due process” guarantee was that nobody should be punished except after having had a fair trial, it nowadays can also mean that nobody should be punished at all. But this set of arguments, which has now been deemed insufficient for creating a “right to abortion” is exactly the same that was used to fabricate the “right to sodomy”, the “right to sodo-marriage”, and the “right to have access to hormonal contraception”. In short, Dobbs is a general indictment of judicial activism, and if the Court wants to remain consistent with itself, it will sooner or later overturn those other novel “rights” just as it has overturned the “right to abortion”. Nothing will be left.

This is indeed so, and no informed lawyer will therefore give much credence to the assurances in the majority opinion that this decision was only about abortion. We will soon see some cases concerning sodo-marriage being brought to the lower judicial instances; one of them will sooner or later reach the Supreme Court. With regard to sodomy between consenting adults and contraception, we doubt that there is currently much political will to challenge the current legal situation. And in any case, saying that something isn’t a constitutionally guaranteed right is not tantamount to saying that this something must be prohibited.

What are the worldwide implications of Dobbs?

First of all, it sets a landmark regarding abortion. Social developments in the US nowadays have a huge influence on social developments elsewhere, in particular in Latin America and Europe. Dobbs could be the tipping point towards a more restrictive regulation of abortion in many other jurisdictions.

Beyond that, Dobbs could also be the mene tekel of leftist judicial activism: it teaches the world that activist judgments such as Roe may survive for some decades, but not forever. The most activist of all judicial bodies in Europe is without doubt the European Human Rights Court, which in the last 25 years has produced a long series of extravagant and ultra-activist decisions, always in lockstep with the leftist zeitgeist, and in most cases in radical contradiction to what the Human Rights Convention actually says. But also some national constitutional courts have veered into judicial activism: think of Germany’s Bundesverfassungsgericht, which has creatively expanded “transgender rights”, discovered a “third sex”, and declared the “fight against climate change” to be the new fundamental law against which all other laws must be measured. The Austrian Constitutional Court has, uniquely in Europe, imposed sodo-“marriage” through judicial fiat. In several other countries, euthanasia and assisted suicide has been legalized in this way, based on implausible pretensions that these new “rights” were implicitly contained in the respective constitutions. But the lesson from Dobbs is: if such a finding is implausible at the day of its making, it remains so throughout the entire time of its existence. In the end it can and will be corrected.

Third, Dobbs stifles the possibility for the US administration to promote “abortion rights” world-wide through its development aid or through the influence it wields at the UN. The big lie that “there is an internationally recognized Right to Abortion” will become more difficult to spread, when the Supreme Court of the world’s strongest and most influential political and economic power has declared that it recognizes no such right. This will soon be felt at the UN, but also at the EU where the European Parliament has recently adopted a so-called Initiative Report cracking full of such false assertions.

Pro-lifers should rejoice about this important victory, but they should be aware that the fight is not over. That abortion is no longer (falsely) considered a “constitutional right” in the US is but a first step in the right direction. The ultimate goal is to outlaw abortion in every single US state, in the US as a whole, and world-wide, just as slave trade has been outlawed. This requires a re-education of public opinion in particular in the US and  Europe, where after decades of brainwashing large swaths of the populace are more or less blind to the scientific fact that the unborn child is a human being. The question whether abortion should be legal or not cannot be cast as a matter of “value judgments” and “personal opinions” when in fact science gives a clear and undisputable answer.

With the current composition of the US Supreme Court, it can be realistically hoped that one day, perhaps one that is not too far away, that court will give the same answer. Any such decision by the court would be far more difficult to overturn than Roe, because it would be based on science and rationality rather than on claims that everybody knew weren’t true