In Support of Dobbs

By John Yoo

The hope was that the Dobbs opinion would finally represent an end to the contentious politics of abortion. Rather, it has signaled the beginning of a new and likely much more intense phase of bitter controversy. While Justice Samuel Alito may hope that Dobbs will lower the temperature of the issue by removing it from the control of the federal judiciary and placing it with the political branches in the 50 states, the likelihood is that the issue will now heat up in several ways. The centripetal forces of American politics are likely to see the issue front and center again in Washington DC, and the Supreme Court may well be dragged back into to fray whether it wants to or not. Rather than defusing the issue, we may be on cusp of a “big bang” in abortion politics.

The question in Dobbs was whether Mississippi could ban all abortions after 15 weeks of pregnancy. Under Roe, as reaffirmed in Casey v. Planned Parenthood (1992), the Court generally had allowed states to regulate abortions, so long as they did not place an “undue burden” on a woman’s right to choose (though the Court failed to clearly define “undue burden”). But before viability, which occurs at about 22–23 weeks of pregnancy, the Court has held that the Constitution’s due-process clause protects a virtually unrestricted right to an abortion. The Dobbs opinion overturned Roe and placed abortion policy back into the hands of the states.

The Dobbs decision does not innovate. It merely restates the main line of argument developed over decades by conservative jurists, led by Justice Scalia and Judge Robert Bork. The Constitution creates a governing system that privileges positive law — law made by legislatures, executives and agencies, and constitutional conventions — rather than unwritten rights provided by sources external to the written text. The Scalia/Bork approach takes the Constitution as neutral on most moral questions and favors judicial restraint so that Americans acting through their legislatures can provide the answers.

Dobbs’ critics accuse the reported majority of radicalism. But the opinion rejects Roe on the same grounds raised by distinguished liberal scholars. John Hart Ely of Harvard Law School, one of the most influential constitutional scholars of the late 20th Century, called Roe “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Laurence Tribe, another of America’s most important constitutional law thinkers, observed, “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Scholars criticized Roe and its progeny because abortion does not appear anywhere in the constitutional text. For Roe to assert that a right to abortion lurks in the phrase “nor shall any State deprive any person of life, liberty or property, without due process of law,” twists words beyond their meaning. Even if abortion rests within the under-

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