This week, the US Supreme Court agreed to hear a case that could result in the overruling of Roe v. Wade.
The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans abortion starting at the 15th week of pregnancy.
Significantly, the statute draws the line before fetal viability—the point at which survival is possible outside the womb.
The Court has previously held that before viability, “the state’s interests are not strong enough to support a prohibition of abortion or substantial obstacle to the woman’s effective right to elect the procedure.”
To uphold Mississippi’s law, the Court would have to rewrite the rules—perhaps just the opportunity it needs to overturn Roe altogether.
If that happens, it will represent the culmination of decades of work by anti-abortion-rights activists.
But for those activists, gutting Roe would be just the beginning.
Ever since Roe, abortion-rights foes and their Republican allies have been asking the Court to reverse course—to acknowledge that the Constitution has nothing whatsoever to say about abortion, either in favor of or against it.
Antonin Scalia, the Supreme Court justice arguably most beloved by conservatives, routinely stated that the Constitution is silent on abortion.
Republicans have railed against the Court’s judicial activism in Roe, insisting that the justices robbed the American people of the opportunity to decide the abortion issue for themselves.
In this account, Roe did not just destroy valuable opportunities for compromise on abortion; the decision did fundamental damage to America’s democratic principles, removing one of the most controversial issues from representative legislatures and resolving it by judicial fiat.
But within the anti-abortion-rights movement, there is not so much talk about democracy anymore.
Now some abortion-rights opponents are quite literally looking for a Roe of their own, asking the Court to recognize fetal rights under the Fourteenth Amendment.
Remember that overturning Roe wouldn’t make abortion illegal; it would mean that states could set their own abortion limits, which would no longer be subject to constitutional review.
That will never be enough for anti-abortion-rights activists, though.
In the conservative magazine First Things, John Finnis, a professor emeritus at the University of Notre Dame, recently made an argument that could provide the framework an anti-abortion-rights Supreme Court could use to outlaw abortion across the country: that the legislators who wrote the Fourteenth Amendment viewed unborn children as persons.
If the Constitution recognizes fetal personhood, then unborn children would have the right to equal protection under and due process of the law.
Abortion would be unconstitutional in New York as well as in Alabama.
Other leading anti-abortion-rights scholars have made the same argument.
Finnis’s article has provoked debate across the ideological spectrum.
The conservative attorney Ed Whelan has taken issue with the substance of Finnis’s claim, suggesting that unless the anti-abortion-rights movement first wins over public opinion, Finnis’s approach will backfire.
Progressives have been far harsher, unsurprisingly.
Writing in The New York Times, the columnist Michelle Goldberg denounced what she calls an authoritarian turn in anti-abortion-rights advocacy—one more sign that the GOP has changed fundamentally in the post-Trump era.
The abortion debate has never been about just Roe—and it’s never been about letting a popular majority have a say.
What’s new is that this argument now meets a receptive Supreme Court for the first time in more than a generation. Continue reading