Dobbs and Legal Moralism—a Wake-Up Call Nicole Scott Free Inquiry

The recent U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization is a wake-up call. Dobbs overturned past case law granting American women a limited constitutional right to abortion. More specifically, the majority judges ditched the 1973 ruling in Roe v. Wade and the 1992 c.ase Planned Parenthood v. Casey. It will now be left to the legislatures of the fifty American states to determine what, if any, prohibitions or restrictions they wish to impose on abortions.

Prior to Dobbs, many states already had prohibitions on their statute books, and those laws have sprung to life. Other states are enacting new restrictions. Some are pondering laws to restrict contraception, although the opinion of the court, written by Justice Samuel Alito, claims not to cast doubt on past cases other than Roe and Casey. For example, the court’s opinion is not supposed to undermine Griswold v. Connecticut (1965; dealing with bans on contraception) or Lawrence v. Texas (2003; declaring anti-sodomy statutes unconstitutional).

At this point, only one Supreme Court judge—Justice Clarence Thomas in his separate opinion—has questioned past cases that rely on similar reasoning to Roe but do not involve abortion. But Dobbs should remind us that towering edifices of law can be built on unsteady foundations, judicial revolutions in constitutional interpretation can and do happen, and it’s naive to assume that constitutional decisions will survive forever. The majority’s legal reasoning in Roe was questionable from the beginning, and it received criticism in the 1970s even from many supporters of abortion rights. It was always vulnerable to challenge.

There is still a tenable argument to support Roe’s central findings, which was elaborated with impressive erudition and force by the dissenting judges in Dobbs: Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Furthermore, the rights set out in Roe, and largely maintained by Casey, were derived from a principled approach to the Fourteenth Amendment to the U.S. Constitution, specifically to its Due Process Clause. That approach sustained other rights that almost no one wants to eliminate. Accordingly, Roe and Casey enjoyed a certain protection. They could not easily be overturned without weakening a longstanding constitutional approach that most recent judges, even some conservative ones, had reasons to keep alive.

But we’ve seen the outcome. The Alito opinion tries to preserve existing Due Process doctrine while marking out abortion rights as exceptional because they involve the destruction of fetal life. But Justice Thomas, at least, appears eager to interpret the Due Process Clause narrowly, even though (or perhaps because) this would bring much previously settled law crashing down. In the future, other conservative judges might agree with his ideas. We can bemoan this, oppose it politically, and develop legal arguments against it—the dissenting opinion in Dobbs is a good start—but we should take note that the Due Process Clause does not give a long-term guarantee of any substantive rights and freedoms.

By all means, then, American activists and lawyers should continue to bring cases to the courts in an attempt to expand or protect individual rights, not least of all reproductive rights. But let me plead, as an informed and sympathetic outsider to events in the United States, that this not be viewed as a substitute for winning the larger contest of ideas over state power and personal freedoms.

An especially worrying aspect of Dobbs that has received little attention is its endorsement of legal moralism: the theory that a society’s laws should enforce its moral code. The opinion of the court begins by stating: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” That’s an inauspicious starting point, and Justice Alito and his colleagues eventually conclude that this “profound moral issue” should be resolved by the individual American states. That is, state laws should reflect whatever moral views on abortion prevail locally: one state might decide to permit all abortions while another prohibits all abortions. Still others might adopt more complex regulatory schemes.

Contrary to this approach, however, it is not the role of the state to enact laws that enforce locally popular moral ideas—ideas that are likely to be based on sacred scriptures or other religious teachings.

The fundamental role of the state is to protect its citizenry from internal and external enemies. Beyond that, modern governments provide the physical and social infrastructure to help their citizens flourish by their own lights in the everyday material world. This requires large-scale public spending and a significant tax base, so spending priorities and taxation structures and levels are legitimate issues for electoral politics. By contrast, the government should not attempt to enforce a local majority’s idea of moral purity, holiness, rightness with God, the desiderata for spiritual salvation, or any similar concept. There should be no governmental interference with our private lives based on bare moral grounds. As a good example, abortion decisions should be made by individual women, not by state legislatures.

In short, lawmakers should not respond to contested moral issues by imposing the views of an electoral majority on everyone else. That simple point is the essence of a tolerant, pluralist society. I could make an argument that it is constitutionally protected in the United States by the combined effect of the First and Fourteenth Amendments, but in all honesty it is not an argument that would persuade the current Supreme Court. I doubt, in fact, that it would prevail even with future Supreme Courts that might have more liberal compositions. Experience shows that even the most liberal judges in the United States grant some deference to religion and accommodate a degree of legal moralism.

Fundamentally, then, liberal-minded people in liberal democratic societies are doomed to take part in a broad social, rather than merely legal, contest of ideas. It’s a contest to defend tolerance and pluralism. It requires energy, intellectual rigor, and consistency. Importantly, it means resisting any temptations of our own to impose our contestable moral views via state power. That’s a tough commitment to make, but there’s no realistic substitute.

The recent U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization is a wake-up call. Dobbs overturned past case law granting American women a limited constitutional right to abortion. More specifically, the majority judges ditched the 1973 ruling in Roe v. Wade and the 1992 c.ase Planned Parenthood v. Casey. It will now be …