The moral worldview of Dobbs
Andrew T. Walker | Justice Alito argues that life is worth protecting for its own sake
In legal theory, the precise relationship between morality and law is complicated. In practice, they’re often not as linked together as we might think. These conflicts surface philosophically on questions like whether and how human laws should reflect a higher law, such as the natural law. It manifests practically in issues such as abortion. Is abortion moral because, under Roe, it was lawful, or are there other ethical dimensions that the law should consider, such as the intrinsic value of life? Though the Dobbs decision was not squarely focused on the morality of abortion and the moral value of life itself, it was unavoidable that these ethical concerns would come into focus.
Under the previous holding of Roe, the state’s interest in protecting life was arbitrarily reduced to an incoherent and judicially created “viability” standard. In other words, the state’s interest in protecting unborn life was limited to when the child can live outside the mother’s womb. But as Mississippi argued, it makes no sense to allow a state to protect a baby when he can survive alone and not when he just needs a little more help.
The Dobbs decision radically rejects this incoherent test in exchange for a more fixed and objective standard: life itself, regardless of its stage of development. Though subtle in its prose, the moral principles of the Dobbs decision represent a tectonic shift in the Supreme Court’s posture toward protecting life. We dare not miss it.
And while the Dobbs decision ultimately leaves the question of when and how to protect life to the states, it makes a radically positive shift toward giving the protection of life at all stages the presumption of state interest and, therefore, of legal protection. There’s a lot to unpack in that.
“A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity,’” wrote Justice Samuel Alito in the majority opinion. “It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
Alito goes on: “These legitimate interests include respect for and preservation of prenatal life at all stages of development … the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability” (emphasis mine).
Though he does not come out and say it, implicit in Justice Alito’s argument is the moral good of protecting life as a good in itself. He does not appeal to theology to arrive at such a conclusion. Rather, it’s a conclusion drawn from the most basic principles of practical reason. If life is not a basic moral good worth protecting for its own sake, identifying moral goods elsewhere also fails. Such logic parallels Scripture’s teaching on human life bearing intrinsic dignity. Morality requires consistency (elsewhere, Justice Alito notes how philosophers and ethicists have pointed out the inconsistencies of the viability standard). Moral half-measures are how injustices like Roe happen in the first place.
Justice Alito also chastises the dissenting justices for elevating other so-called “rights” to sexual intimacy and same-sex marriage to abortion. He dismisses the comparison, noting that the protection of unborn life from “destruction” puts the focus of Dobbs on a different moral plane from sexual activity. Here, then, is a ranking of moral concerns. According to Justice Alito, through Roe and Casey, “Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”
One stark difference between the majority opinion and the dissenting opinion is an important presumption. The majority opinion implicitly broadens the scope of human dignity and the law’s reach in protecting it. The dissenting opinion ostensibly restricts the range of dignity and rights.
It was very satisfying to see both Justices Alito and Clarence Thomas taking a scalpel to Justice Anthony Kennedy’s famous “mystery of life” jurisprudence, offered by Kennedy as a justification for abortion rights in Casey.
Justice Alito lambasted such high-minded silliness: “While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered liberty.’”
Justice Alito argued that such an approach to jurisprudence “proves too much” and could license “fundamental rights to illicit drug use, prostitution, and the like.” Indeed, the majority opinion’s talk of “ordered liberty” is a repudiation of the expressive individualism and autonomy ethic at the heart of the dissenting opinion. According to the majority, “liberty” is not a blank check to do whatever one wants but what one ought under the canopy of a historically informed understanding of our nation’s founding.
Morality is inescapable. Let us thank God for the moral correction declared in Dobbs—a reversal that put to rest the moral subterfuge of Roe.
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