On the morning of June 24, 2022, the Supreme Court (SCOTUS) announced its ruling in Dobbs v. Jackson Women’s Health Clinic. The case had to do with a Mississippi law, the “Gestational Age Act,” that banned most abortions after fifteen weeks of pregnancy, with exceptions for medical emergencies and fetal abnormalities. Dobbs overturned the 1973 decision Roe v. Wade, which said the Constitution contained a right to abortion, even though such a right is not found in the text. The Dobbs decision meant that the federal government, especially SCOTUS, has no authority to make decisions for or against abortion; rather, the issue should go back to the states, as was the case before 1973. The immediate impact of the decision was seismic; in fact, the moment the decision was announced, my son sent me a text that simply read “Boom.”
Later that morning, I contacted a friend of mine who had worked tirelessly for pro-life causes for decades. I congratulated him on his dedication, but his response was muted. He said, “I wish this had come about because of a change in hearts and minds.” Two hours later, he died of a heart attack.
The Background
A little review is needed, but let’s keep it as simple as possible. Some may protest that this is an oversimplification. Guilty as charged, but keep in mind we are reducing several hundred pages of SCOTUS jurisprudence to only a few paragraphs.
It all started with the Griswold decision in 1965 that found a law in Connecticut restricting the use of contraceptives was unconstitutional. The court said the state of Connecticut had exceeded its proper boundaries. That much seems uncontroversial.
It was the reasoning in the case that has proved controversial. The decision of the court is called the finding, and it is usually rendered as simply yes or no. The reasoning is a little tougher, but it’s not rocket science. The reasoning tells why the finding is yes or no. In this case, the reasoning was, to put it charitably, fanciful. Justice William O. Douglas used technical, astronomical metaphors to argue that a stand-alone “right to privacy” was a part of the Constitution, even if it is only implicit.
Then came Roe v. Wade about eight years later. In this case, the court concluded there is indeed a constitutional right to abortion based on the right to privacy. The court used the timeline of the fetus’ viability to help its reasoning—that is, until the fetus is viable outside of the womb, it may be fair game for abortion. A decade later, Justice Sandra Day O’Connor famously wrote, “Roe v. Wade is clearly on a collision course with itself,” by which she meant that as medical science advances, viability would occur earlier and earlier. Indeed, fetal viability in 1973 was about twenty-four weeks; now it can occur as much as a month earlier.
The next is Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which had to do with a challenge to certain Pennsylvania restrictions on abortion.
This was an opportunity to overturn Roe, and the court probably would have done so if Justice O’Connor had not changed her mind. The court reaffirmed “the essential finding in Roe v. Wade,” although the court said most of the Pennsylvania restrictions were constitutional. As far as the reasoning, even though a majority of the court agreed on the finding, that majority could not agree on why; thus, the court rendered a “plurality decision,” meaning there were several different reasonings. It was a fragmented, bitter case that did not bode well for the future of abortion.
You can’t play musical chairs with the reasoning of a case.
Casey is also notable for several other reasons. The court abandoned the right to privacy as the constitutional basis for a right to abortion, but they found another avenue—namely, the liberty clause (a part of the due process clause of the Fourteenth Amendment), claiming abortion is a function of a woman’s liberty that no government can take away. The court made abortion a little more difficult: It changed the standard by which abortion restrictions should be analyzed. The court said if the restriction does not impose an “undue burden” on an expectant mother seeking an abortion, then those restrictions might be allowed. The decision, however, declined to identify just what constitutes an undue burden.
In his concurring opinion, Justice Blackmun, who wrote the Roe majority opinion, worried that the right to abortion would eventually be overturned.
He was right.
The Dobbs Decision and Roberts’ Concurring Opinion
That brings us back to Dobbs. Dobbs was a 6–3 decision allowing the Mississippi restrictions. The court wrote,
we hold that Roe and Casey must be overruled. 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.
It also rejected a comparison between a right to abortion and any other right that might be recognized by the Constitution because two lives are involved in abortion decisions:
Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different . . . because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Chief Justice John Roberts wrote a strong concurring opinion, meaning he agreed with the majority that the restrictions were constitutional, but he thought the court went too far in overturning Roe. Roberts thought the court guilty of the thing conservatives most dislike: judicial overreach. He argued that the court should take a “more measured” approach and only decide enough to settle the question about the Mississippi restrictions. He wrote, “I would decide the question we granted review to answer. . . . There is no need to go further to decide this case.” Whether he meant to or not, Roberts was implicitly saying that his colleagues in the majority were guilty of the same thing Roe v. Wade was guilty of—going further than they should have. He even speculated that terminating a pregnancy before fifteen weeks might be treated differently than a ban after fifteen weeks. This is a surprising concession from a Catholic, conservative justice. He was essentially saying that a ban after fifteen weeks might be a compromise between pro-life and pro-choice advocates, at least at the present time. That would no doubt be anathema to some.
The Aftermath of Dobbs
The pro-choice Society of Family Planning (SFP) reports that in 2024 the number of abortions increased, writing, “In the first three months of 2024, an average of 98,990 abortions were performed per month, compared to 84,000 per month in the two months before the Supreme Court’s Dobbs decision in June 2022.” The SFP describes a “whack-a-mole” phenomenon:
Although abortions have decreased in the 14 states with abortion restrictions, they increased in states with liberal abortion access, especially states like Illinois, Kansas, and New Mexico, which border states with restrictions.
The SFP notes that a principal reason for the increase is the growing availability of abortion-inducing prescriptions, like the combination of mifepristone and misoprostol, available through telehealth without medical supervision:
Before Roe was overturned, only 5 percent of U.S. abortions were administered via telehealth. In states that have restricted access to abortion, chemical abortions are convenient, cheap, and rising in popularity; chemical abortions accounted for 63 percent of all abortions in the U.S. in 2023, up 10 percent since 2020.
So, the rate of abortion might increase for the foreseeable future as more and more women take advantage of telehealth.
It is fair to say that since Dobbs, pro-life advocates are losing on the state level more often than they are winning. In recent elections, four states have passed constitutional amendments protecting the right to abortion. In the same period, restrictions on abortion in Kentucky and Kansas failed at the ballot box. In state legislatures, seventeen states and the District of Columbia now have laws that protect the right to abortion. These amendments and laws can only be modified or repealed by the states themselves and some go much further than even Roe would have allowed. Minnesota’s constitution now allows abortion at any point in a pregnancy. The same is true in Michigan.
So . . . Was Chief Justice Roberts Right?
From a purely jurisprudential point of view, Roberts is on shaky ground, and he undoubtedly knew it. But Roberts has shown his willingness to “fudge” his jurisprudence; for example, he did so in the two Obamacare cases in 2012 and 2015. Why? It is clear that Roberts pines for the days when Chief Justice John Marshall presided over the court in the early nineteenth century. Marshall was intent on building confidence in the Supreme Court and enhancing its prestige, so no justice went home until they all agreed. Roberts is an institutionalist: He believes preserving the sanctity of the institutions of government is critical for the future of the country. When Roberts was appointed, too many SCOTUS decisions had become “split decisions,” that is, the vote was 5–4. Hugely important questions were settled by only one vote. More disturbing, government officials and others seem to be freer to criticize or even condemn the court, sometimes in outrageous ways, as when Senator Chuck Schumer warned the court that overturning Roe “released the whirlwind.” Just since the recent presidential election, a “resistance movement” has grown. Among other things, those associated proclaim they no longer respect the court, nor will they comply with its decisions. Roberts worries that if the institutions of the American government begin to fail, all will be lost.
Over the years, conservatives and liberals alike have recognized that Roe is a poorly reasoned opinion and expected that one day it would be overruled. Abortion has been a right in search of a constitutional home that it never found. Nonetheless, in the Dobbs oral arguments, Justice Sonia Sotomayor warned that overruling Roe would create a “stench.” But not once in her sixty-six-page dissenting opinion does Sotomayor mention the phrase “right to privacy”; instead, her argument relies on the liberty clause introduced in Casey. Even at that, she does little to make the connection between the liberty clause and a right to abortion. But you can’t play musical chairs with the reasoning of a case. Nor does she really address the majority opinion observation that abortion is unique because it involves two separate lives.
Finally, Roberts was motivated by prudential concerns. St. Thomas Aquinas teaches that the most important virtue is prudence, the ability to take general principles and know how to apply them to particular situations. In the Summa theologiae, he defines prudence as “right reason in respect to action.” Roberts would no doubt recognize the adage “the perfect is the enemy of the good.” In today’s precarious environment, prudence is critical, even if it leads to self-restraint. My late friend introduced above, a businessman, contributed as much to local government as he could. He confessed that he was at times frustrated by conservatives who demanded everything because that often meant they got nothing.
All of this should not be interpreted as a disagreement with the Dobbs majority decision; rather, it is a suggestion that Roberts had something important to say in his concurring opinion.