By Gualberto Garcia Jones, Esq. — Dobbs v. Jackson overturned Roe and Casey and sent abortion back to the states, but should the right to life be a political question?
On June 24th, 2022, pro-life Americans, including this author, thanked God when the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the Dobbs v. Jackson Women’s Health case.
For almost 50 years, our efforts to promote a culture of life had run headlong into a legal system designed to thwart all legal attempts to recognize the humanity of the pre-born child.
Yet, how should the pro-life movement view a constitutional decision that is decidedly neutral on the personhood and right to life of the pre-born child? Should pro-lifers be satisfied with a Supreme Court standard that allows the fundamental right to life to be determined by the mother’s state of residence?
More importantly, can a nation survive united when truly fundamental and profound moral questions are determined with diametrically opposed standards that depend on which side of a state border one finds themselves?
The Roe and Casey Catch-22
By design, the Casey decision held that any pro-life laws that created “undue burdens” to women’s ability to kill their pre-born children, were unconstitutional. In other words, for the last 30 years, the Supreme Court standard was that a “pro-life” law was constitutional only if it didn’t actually do anything substantial to prevent an abortion.
“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion …”
Dobbs v. Jackson Women’s Health
On June 24th, almost exactly 30 years after Casey, the Supreme Court decisively held that abortion is not, and never was, a constitutional right.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997)
However, just a few paragraphs down from the quote cited above, Justice Alito makes a very large and problematic leap. Writing for the majority of the Court, Alito quotes Justice Scalia and concludes that, since abortion is not mentioned in the constitution and was never a deeply rooted traditional practice, it is up to the People and to the states to determine how to deal with abortion.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.”
Without ignoring the immense legal hurdle that the Dobbs decision removed, American pro-lifers must ask themselves: If abortion is the killing of a pre-born human being, is it correct to say that the Constitution is silent on abortion?
Can a state permit the killing of a group of human beings without violating the U.S. Constitution?
The Fifth and Fourteenth Amendments
The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause. Due process deals with the administration of justice and thus, the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law.
“No person shall be … deprived of life, liberty, or property, without due process of law…”
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.”
Some attorneys argue that the due process and equal protection clauses would not apply to abortion because abortions are typically committed by individuals not the state. However, that view ignores important precedents that show that failure by the state to guarantee due process and equal protection of the law violates both the Fifth and the Fourteenth Amendments.
The Supreme Court held in Bolling v. Sharpe (1954) that the due process clause of the Fifth Amendment imposes equal protection requirements on the federal government via reverse incorporation. In addition, the Supreme Court held that equal protection in the Fourteenth Amendment requires a state actor to pass laws for the protection of fundamental rights, such as the right to life.
“Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.” These views are fully consonant with this Court’s recognition that state conduct which might be described as “inaction” can nevertheless constitute responsible “state action” within the meaning of the Fourteenth Amendment.”
Bell v. Maryland
For much more information and discussion on the topic of constitutional personhood, visit our Strategy page.
What about the right to life?
A search for the words “right to life” in the Dobb’s opinion yields three meager results. Two of them are references to organizations, while the other is a citation to pro-abortion, pro-infanticide philosopher Peter Singer’s definition of personhood.
While the Supreme Court took an important and necessary step in overturning Roe v. Wade and Planned Parenthood v. Casey—eliminating the “right” to abortion—it failed to provide the necessary analysis of the constitutional protection of the right to life. After all, the protection of the right to life is one of the few explicit reasons why “governments are instituted among men.”
A profound moral issue
Justice Alito begins his opinion with the following reflection:
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens.”
The fact is that, until New York legalized abortion in 1970, the only regulation of abortion was aimed at accommodating exceptional circumstances. While these exceptional circumstances were later used as a justification for wholesale denial of the right to life, the right to life of the pre-born was never really in question until the early 1970s. Before the moral and ideological rot of the 1960s penetrated the core of the judiciary in the late 1960s and early 1970s, stating that “the killing of a child in the womb is a matter of state politics” would have been akin to stating that choosing whether to allow the murder of certain classes of human beings was up to each state.
On the contrary, one of the few things our magnificent Constitution makes absolutely clear is that the right to life cannot be taken away without due process of law.
Dobbs was a great step forward. It effectively freed the courts from being the enforcers of legalized abortion. But if America is to survive as a nation, we must do better than be neutral about the killing of innocent children in the womb.
Can America survive as a house divided?
“A house divided against itself cannot stand.” I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.”
Justice Alito and the majority of the Supreme Court seem to believe that truly profound moral issues can be resolved through a federalist approach in which fundamental rights are determined by geographic location. But is this true? What other fundamental rights are treated in this manner?
Personhood for all or national dissolution
I believe that abortion could destroy the bonds that keep this nation together. America is not Europe, and American pro-lifers will not settle into a comfortable relationship with the evil of abortion. We haven’t for 50 years, and we won’t moving forward.
However, we should not blame the Supreme Court because the Dobbs decision did not go far enough. After all, remember that the law that pro-lifers sent up to the Supreme Court to be adjudicated was a 15-week abortion ban. This was a law that, at most, would have saved 5% of the victims of abortion.
Dobbs was also the greatest step forward for the pro-life movement in the last 50 years, and we should celebrate that.
However, we must also acknowledge the immense power of the secular humanist pro-abortion ideologies in academia, business, the media, finance, the arts, government, medicine, law, and even within many churches. These sectors of society will not rest until they strip every pre-born child of the protection of the law in accordance with their twisted worldview.
The future is still bright
We must prepare for a great struggle and great sacrifices ahead. Every one of the groups mentioned above (and others not mentioned) must be reformed to the point where we can be united as a nation that truly respects the right to life of all innocent human beings.
The Supreme Court has cleared the legal hurdle for the pro-life movement to advance, but they did not throw their lot in with the pro-life cause. The heavy burden of convincing Americans of all walks of life, including a majority of the Supreme Court, that the right to life must be guaranteed throughout the land, is for us pro-life Americans.
Whether the final victory comes through a constitutional amendment, a new Supreme Court decision, or federal legislation, one thing is clear: Pro-life Americans will not rest until every child is protected by love and by law in this great nation.
Let’s get to work.
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Gualberto Garcia Jones, Esq., is the legal counsel and former president of the Personhood Alliance and is the executive director of the International Human Rights Group. For the past 15 years, Mr. Garcia Jones has served as a legal expert on human rights issues for various organizations and campaigns in the U.S. and internationally. He is a member of the bar in the Commonwealth of Virginia, has drafted dozens of legislative proposals, and advocates for the defense of human rights before international, federal, and state governments. Mr. Garcia Jones has submitted numerous legal briefs before several courts, including the U.S. Supreme Court and the Constitutional Court of Colombia.