Dobbs case: An unborn human being but not a person

Dobbs v. Jackson Women’s Health Organization overruled the Roe and Casey cases, the two cases that recognized a woman’s constitutional right to an abortion in the pre-viability stage of pregnancy. No longer is it a constitutional right; now the democratic process will legislate at the state level. Congress may pass a statute that would preempt state law. This is now an uncertain and precarious time for both mothers with unplanned pregnancies and their unborn human beings. They face the vicissitudes of politics.

The Dobbs case will also be an excellent teaching tool for law schools since the case presents three distinct approaches: the majority’s conservative, textual (justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett); self-restraint traditional, do not decide more than necessary, which would have retained Roe and Casey (Chief Justice John Roberts); and a liberal, precedent-based, consequences-oriented, flexible interpretation of the word “liberty” in the 14th Amendment (justices Stephen Breyer, Sonia Sotomayor and Elena Kagan).

My purpose is to describe the basic logic of the majority opinion, to point out differences with other approaches, and to raise the issue of the unborn human being as a person under the 14th Amendment. It seems so close to that distinction given its importance in the majority’s opinion.

The logic of the majority’s opinion is a clear distinction between a judicial and a legislative function. Courts do the former; legislatures do the latter. The judicial function is largely to examine texts, constitutional and legislative, and textually based precedents. Thus, it is of critical importance that a right to an abortion is not found in our Constitution. Therefore, it is an unenumerated right. An unenumerated right can be recognized as a constitutional right in only two ways: 1) as a right that is an integral part of a constitutionally recognized right, or 2) as a right which is deeply rooted in our nation’s history and tradition.

Is the right to an abortion an integral part of a constitutionally recognized right? The majority answered no. The right to privacy was the first constitutional right at issue, also not textually found. The key point was that there is a distinction between the right of privacy, say, regarding same-sex marriage, and abortion. That distinction is because abortion involves an “unborn human being.” This distinction recognizes the fetus as making a difference.

In addition to privacy, the majority looked at the concept of “liberty” which is textually in the 14th Amendment. It noted that, “…the term ‘liberty’ alone provides little guidance … we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy … That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution.”

It is here we have clear divergence with the dissenting liberal view. They would see the word “liberty” as expansive, not tied to what it included in 1868, when the 14th Amendment was ratified. They would think in terms of greater freedom and what our precedents have taught us.

Is the right to an abortion deeply rooted in our nation’s history and tradition? The majority says clearly no. This is the majority’s most important point, I believe. They go back to Bracton (13th century), Coke (17th century) and at the time of our Constitution (Backstone) to show that in our English tradition abortion of a “quick” fetus was a crime. “In this country, the historical record is similar … This overwhelming consensus endured until the day Roe was decided.” Thus, the right to an abortion is not deeply rooted, but goes back only to Roe, 1973.

The unenumerated right to an abortion fails. It is not an integral part of a constitutionally recognized right and it is not deeply rooted in our nation’s history and tradition. Roe and Casey got the history wrong. The dissenting liberals ask: What’s this about the 13th century? The majority upheld the Mississippi statute on a mere rational basis test, since no constitutional right was involved.

What about the unborn human being as a separate legal interest? If anyone ever needed a lawyer in this business, it’s the fetus.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Dobbs case: An unborn human being but not a person