Dobbs, Obergefell and “the critical moral question posed by abortion”


This article is part of a symposium in the field decision in Dobbs v. Jackson Women’s Health Organization.

Stephen G. Gilles is a professor of law in the Faculty of Law at Quinnipiac University.

grant him Glucksbergthe “deeply rooted in our history and tradition” test for implied fundamental rights, and that of Judge Samuel Alito Dobbs opinion abolishing the constitutional right to abortion is irrefutable. But as the Dobbsdissidents opposed it, Alito ignored the fact that Oberfelfell v. Hodges – the court’s most recent implied rights case – expressly declined to use the Glucksberg test, which he found “inconsistent with the approach this Court has used to discuss other fundamental rights, including marriage and intimacy”. Oberefellthe approach, as Dobbs dissenters point out, argues that “applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.”

Alito’s Silent Treatment Oberefell may seem confusing, as her opinion repeatedly insists that nothing about her undermines Oberefellhas the right to same-sex marriage, Griswoldthe right to contraception or any other implicit fundamental right recognized by the court. But above all, the Dobbs opinion doesn’t matter uniquely on constitutional principles and tradition. As Oberefell, Alito’s opinion considers “constitutional precedents” as evidence of constitutional meaning. After demonstrating that a constitutional right to abortion does not satisfy the Glucksberg test, he asks “whether the right to obtain an abortion is part of a larger, entrenched right that is supported by other precedents.” Alito replies that the right to abortion finds no support in precedent, because abortion is radically different from all other fundamental rights, including contraception. This argument is persuasive in itself, supported by Oberefelland not refuted by dissent.

Consider Alito’s description of the difference between abortion and contraception and other recognized fundamental rights: “Abortion destroys what [Roe and Casey] call “potential life” and what the law at issue in this case regards as the life of an “unborn human being”. Abortion therefore poses a “critical moral question”: if and when the fetus has the status of a human being whose life society is morally bound to protect against abortion. deer and Caseyrecognized that because it destroys the fetus, abortion is “intrinsically different” (deer) and “a single act” (Casey). For this very reason, both decisions recognized that the state has a “substantial and legitimate interest” in protecting fetuses that it does not have to prevent contraception. However, instead of giving legal effect to this difference, which Dobbs argues “clearly distinguishes” abortion from contraception, deer and Casey expanded freedom of procreation Griswoldis right to to prevent pregnancy by contraception to the right to end that by abortion. Alito concludes that neither Griswold nor any other previous support deerarrogates to itself the power to settle this “profound moral question”. The Constitution leaves it to the people and their elected representatives to enact abortion laws consistent with their resolution of this issue.

Although Alito did not use Oberefell making this argument, OberefellThe reasoning strongly supports it. By extending the right to marry to same-sex couples, OberefellAs deer and Casey, built on a fundamental right that the court had already recognized. But Oberefell did so only after asking whether “the fundamental reasons why the right to marry has long been protected” “now apply with equal force to same-sex couples” – and finding that to be the case. deer and Casey, on the other hand, did not ask whether the reasons for recognizing the right to contraception “apply with the same force” to the right to voluntary abortion. In place, deer and Casey described the importance of a woman’s right to freedom in abortion, found it comparable in importance to the interests protected by contraception and other fundamental rights, and recognized a fundamental right to abortion on this single basis. Only after pose the right to abortion did deer and Casey consider the importance to be given to the state’s interest in fetal life, with the limited aim of delimiting the right to elective abortion to viability.

It is true that women seek abortions for the same reasons they use contraception: to avoid the burdens of pregnancy, childbirth and motherhood. But the radical difference on which Alito relies – the fact that abortion destroys the living fetus – shows that the analogy is flawed. The recognized interest of the State is in each individual fetuses, not in fetuses as an endangered species of “potential” humans, or a stock of future citizens. Therefore, when a fetus is aborted, the state’s interest in protecting that individual “fetal life” is completely and irrevocably frustrated. The reasons for contraception are not “equally valid” because they are outweighed by the irreparable harm inherent in all pre-viability abortion. OberefellThe reasoning thus confirms that constitutional reproductive freedom stops at the boundary between contraception and abortion.

Echo Caseythe Dobbs the dissent argues that “the right to terminate a pregnancy derives directly from the right to purchase and use contraception”. Because a woman’s decisions about contraception and abortion are “equally essential to her ability to chart her course in life,” dissenters agree CaseyThe state’s conclusion that the state cannot “resolve the moral issues raised ‘so definitively as to deprive the woman of choice'”. For them, the Constitution requires that the woman, and not the people, resolve the moral question posed by abortion. .

Alito’s response is devastating. Respecting the balance deer hit and Casey reaffirmed, Alito points out, dissent “would impose on the people a particular theory about the beginning of human rights. This theory, adopted in deeris that “the Constitution requires states to consider a fetus to be devoid of the most basic human right – to live – at least until an arbitrary point in pregnancy has passed. Stare decisis aside, the dissent’s defense of this theory hinges almost entirely on its assertion that if the right to use contraception is fundamental, so must the right to abortion. But this bare assertion is undermined by dissent’s admission that abortion poses a profound question as to whether the fetus has the moral status of an unborn human being, and its utter failure to identify any comparable question posed by contraception. Dobbs rightly argues that a right to abortion finds no support in our legal tradition or in the Court’s other human rights precedents.

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