The sight of the governor of Massachusetts signing a bill that removes any fixed gestational limit on abortion—surrounded by a group of fawning admirers—was enough to make anyone who isn’t from Massachusetts physically ill. The new law permits abortions after 24 weeks according to the professional medical judgment of a physician, even through the final stages of pregnancy.
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It is not clear how Governor Maura Healey squares her position with the Catholic faith in which she was raised, but the Democratic Party has not cared about that conflict for decades. The Church once made a very big deal out of the Investiture Controversy, but the killing of tens of millions of unborn children throughout the world every year has apparently not risen to the level of denying Communion to, much less excommunicating, the politicians who support it. But then the Investiture Controversy was about power, not life.
There has been nothing but cowardice on this issue since the Supreme Court declared open season on unborn children in 1973. Politicians did little more than give lip service to the matter because, after all, babies in the womb are not of legal voting age.
For more than 50 years, we have pretended that grown men and women have no idea how the reproductive process works. All the sex education classes in our high schools that were allegedly designed to teach young people how to practice responsibility have been—to put it mildly—a joke. Planned Parenthood emerged from the birth-control movement but has developed into the country’s dominant abortion provider. Whereas the Catholic Church at least gives lip service to the humanity of the unborn—and too often that is all—some Protestant denominations now celebrate abortion as a form of liberation, almost a sacrament, rather than condemning it as the monstrosity it is.
As the saying commonly attributed to Stalin goes, the death of one person is a tragedy; the death of millions is a statistic.
Yet, after all the elbow grease expended by the pro-life movement over the previous half-century, the right case finally came before what appeared to be the right court in Dobbs v. Jackson Women’s Health Organization. The decision was issued on June 24, 2022. Justice Samuel Alito, who wrote the majority opinion, was widely regarded as a staunchly pro-life conservative. The Court had the votes to reverse Roe. But in my view, the decision it produced was still a profound disappointment.
The problem with abortion—like the problem with slavery—is that it is ancient and global. Slavery had been practiced for millennia and was accepted by virtually every civilization. Christianity universalized the revolutionary idea that all human beings possess equal worth before God. The words of Galatians remain among the most revolutionary ever uttered in any language: “There is neither Jew nor Greek, slave nor free, male nor female; for you are all one in Christ Jesus.”
Humanity has never found that proposition easy to accept. We still divide ourselves into tribes and arrange those tribes according to guilt, innocence, grievance, race, sex, and political usefulness. We tolerate black and brown children living in abject poverty throughout the world with little chance of escaping it. We hear fanatics condemn the “white race” or pronounce all men guilty because they are men. The notion that there is a God who loves us and considers every human life of equal value is something humanity has continually resisted—and probably always will.
However elaborately one dresses up tribal religion, critical theory, Marxism, or the more extreme forms of feminism, they repeatedly return to the same ancient proposition: some categories of human beings matter more than others. It is bald-faced bigotry with updated terminology.
The United States is a nation that has not succeeded completely in what it set out to do, but it has had some great moments: the Civil War and the destruction of slavery; the salvation of Europe; the Marshall Plan; the rebuilding of Japan; and the dismantling of Jim Crow.
The moment was teed up for the Supreme Court to correct the horrendous injustice of Roe v. Wade. It was an opportunity to take a civilizational step away from barbarism. It was the moment to declare that the Fourteenth Amendment’s protections of life and equality extend to unborn children. It was a moment to provide equal protection to the most discrete, insular, and politically powerless minority imaginable. The Supreme Court had the votes. It stepped up to the plate—and whiffed.
If the United States overcomes its latest bout of Marxism and barbarism and survives for centuries to come—and that is a considerable if—Dobbs may eventually be compared to Dred Scott.
In 1857, Chief Justice Roger Taney’s Supreme Court concluded that people of African descent could not be citizens within the meaning of the Constitution. The Court also treated an enslaved person as property protected against governmental interference. The cowardice of that Court deepened the sectional crisis, discredited judicial compromise, and accelerated the country toward civil war.
The decision demonstrated what happens when the law places an entire class of human beings outside the category of constitutional protection. The Fourteenth Amendment was adopted in the aftermath of that catastrophe, after America had learned—or should have learned—the horror that follows when governments are permitted to create categories of human beings who are considered less than fully human.
Its language is formidable: “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Dobbs Court patted itself on the back for announcing that the Constitution does not confer a right to abortion.
Duh.
Of course it does not. The alleged constitutional abortion right did not emerge from the text of the Constitution. It was manufactured in stages. Griswold v. Connecticut created a generalized constitutional right of privacy from the “penumbras” and “emanations” of other constitutional guarantees. Roe then expanded that newly created doctrine to include abortion. Casey repackaged it as a question of liberty and personal autonomy. It was constructed entirely out of fantastically absurd interpretations of constitutional law.
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Whatever one thinks of a law prohibiting married couples from using contraception, the Court in Griswold was no longer interpreting any identifiable constitutional provision. It was creating substantive policy and giving that policy constitutional status. Roe then took an already dubious constitutional invention and extended it into a radically different moral category. A right to keep the government out of a married couple’s bedroom does not establish a right to end a human life developing inside a woman’s body.
Dobbs properly dismantled that constitutional fiction. But it sidestepped the question it ultimately had to answer: Are unborn children “persons” entitled to constitutional protection under the Fourteenth Amendment? The answer, in my view, is obviously yes. And if you want to know how Massachusetts could have happened, look no further than Dobbs.
Even Roe and Casey understood that viability mattered, however arbitrarily they used it. If anything, improvements in medical science have moved viability even earlier. But by refusing to decide the constitutional status of the unborn child, Dobbs made abortion a matter of democratic fiat. Different states may now determine whether—and at what stage—an unborn child will be protected from being killed. That makes about as much sense as South Carolina deciding that a black person is not a person while Illinois says that a black person is. We’ve been here before.
And that is not how constitutional government works. Whether a human being possesses legal personhood—and therefore may be deliberately killed—is not something that can or should be put to a vote. Dobbs was decided this way for the same reason that courts so often avoid fundamental moral questions: to produce what they imagine will be the least controversial institutional result. We saw how well that worked with Dred Scott.
A state has every right to make many laws subject to democratic agreement. Speed limits, professional licensing, gambling, marijuana, whether stores should open on Sundays and whether taxpayers should finance a new sports stadium are all proper subjects for legislation.
But legislatures cannot pass laws declaring that people with blue eyes or red hair may be killed because the majority has decided they are not really people. That is what totalitarian governments do. It is not what civilized constitutional governments do.
Constitutional rights exist precisely because there are certain questions the majority does not get to answer however it pleases. Courts are supposed to be where people go for refuge when there is nowhere else to go.
An unborn child—the most helpless of all human creatures—has nowhere to turn. Its cries cannot be heard as poison ends its life or its body is destroyed and removed from the womb. The procedure, the process, and the very idea are monstrous. They belong to another time—a barbaric time—and are not worthy of a government or nation on the scale of the United States of America.
The lunacy of Dobbs becomes apparent as soon as we put its theory into practice. Two pregnant women are carrying unborn children at precisely the same gestational age. Both children have beating hearts, functioning organs, and the capacity to survive outside the womb.
One woman stands in Massachusetts. The other stands in a state that does not permit abortion at that stage of pregnancy. What will cost one child its life is not its biology, developmental stage, or capacity to survive. What has changed is the jurisdiction. If that child is a person, which clearly it is, this is intolerable.
Would we say that a person possesses a fundamental right to life in Oklahoma but loses it upon crossing into Colorado? Do we really give a damn what a majority of voters in Colorado think about whether a category of person should be allowed to live? Not any more than we cared that the people of Alabama wanted to enslave other human beings. The South argued, unpersuasively, that their choice of enslaving another human being infringed upon their freedom of choice. As we look back in time, it is extraordinary that any right-thinking person ever held this position. It will look no less monstrous when people look back on our abortion laws.
The Court walked away from the most important issue before it. Dobbs asked whether a woman possesses a constitutional right to abortion. It did not answer the logically prior question of whether the unborn child possesses a constitutional right not to be deliberately killed.
If the unborn child is a “person” within the meaning of the Fourteenth Amendment, abortion cannot merely be returned to legislative discretion. No state may vote away the life or equal protection of a constitutional person.
The Court dismantled Roe but left its most specious and horrific premise intact. Dobbs said, in effect, that the humanity of unborn children would now be decided through elections. It allowed a majority of voters in each state to determine the legal humanity of another human being. That worked well in Germany.
Dobbs is not the end of the matter. At least half of this country does not want to live in a republic that treats human beings as disposable fetal tissue. And at least half of the country no longer gives a damn whether those who support abortion are offended by our position—any more than abolitionists were required to respect the feelings of slaveholders.
This is a stain America will not tolerate forever. Rights belonging to persons do not exist at the pleasure of majorities or of those who feel inconvenienced by another person’s existence.
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The Court may have avoided the question for now.
But it is not going away.
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This content originally appeared on Abstract Truth Substack.