“Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” The Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization begins with this truth. The path ahead for a troubled America would be easier if it continued in this candid vein.
One cannot arraign the entire dishonesty of the ruling in a single column. Dobbs suffers massively from the pandemic disease of the high court: verbosity. Nothing is said once that can instead be said half a dozen times. Justices have too many clerks and too little work, and so they spend months in their chambers swooning to the sound of their own voices.
But three major deceptions are enough to give a flavor of the whole.
First, the Dobbs holding — written by Justice Samuel A. Alito Jr. and joined by four other justices — repeatedly asserts the untrue claim that Roe v. Wade in 1973 usurped the role of state legislatures in regulating abortion and robbed states of the freedom to craft laws reflecting diverse views. “Roe abruptly ended that political process,” Alito asserted. “It imposed the same highly restrictive regime on the entire Nation.”
Not even Alito can sustain this canard for more than a few hundred words. Very soon, he stumbles onto the truth: “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly.”
Obviously, legislatures cannot be highly restricted and widely divergent at the same time.
The court’s abortion rulings never foreclosed debate. The rulings merely structured the debate as a search for those regulations that successfully express the values of a state’s majority while protecting a limited zone of self-determination for women. Dobbs is not about restoring power to the states that was wrongly seized by the courts. It is about taking power away from individuals and giving it to government.
A second deception follows directly from the first. Dobbs attempts to mislead its readers into believing that stripping people of power somehow enhances democracy. Abortion, Alito wrote, is “a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” And later: “We thus return the power to weigh those arguments to the people.”
But that is what Roe did, and what Dobbs undoes. Roe, in all its imperfections, grappled honestly with the “profound moral issue on which Americans hold sharply conflicting views” — and placed those profound decisions directly in the hands of those closest to the issue. It’s true that a state legislature is, by some measures, closer to the people than a court of nine justices in Washington. But far, far closer to this profound and difficult issue are the individuals who must wrestle with the many implications of an unwanted pregnancy, perhaps aided by their families, friends, doctors or counselors.
Dobbs strips decision-making from those closest to the moral struggle and most deeply invested in it. It gives that power to people and institutions that are not directly involved. Then, with shocking dishonesty, Alito presents this as some sort of magnificent restoration of self-determination. He reads the Constitution — which begins “We the People” — and finds no actual people in it. Only legislatures.
Thirdly, Alito and his co-signers claim that the Dobbs decision in no way threatens other rights that have been determined by using exactly the same reasoning as Roe. The line of cases that led to Roe, and led from it to other rights, is “inapposite,” Alito wrote primly.
Freedom from forced sterilization, the right to choose one’s spouse, access to contraception, privacy in the bedroom — these rights stand on precisely the same ground as the right to abortion. And according to Dobbs, the right to abortion is groundless. Yet somehow, those other rights aren’t threatened “in any way.”
That howler didn’t even survive the huddle of the Gang of Five. Justice Clarence Thomas called bullfeathers in his concurring opinion — a document that confirmed two truths about this singular figure: Thomas is the most radical justice in U.S. history, and he is scrupulously honest about it.
He did not pretend, along with his colleagues, that abortion could be surgically plucked from the intimate rights handed over from state power to individual choice by a century of jurisprudence. Unlike Alito, Thomas told the truth: Individual autonomy over intimate decisions is up for grabs.
I said I would discuss three deceptions — but they lead me to a fourth. Dobbs pretends to be the very model of judicial modesty, even as five mandarins in Washington erase the work of their predecessors. Judges should not have such power! the judges declare, as they hurl their lightning bolt.