Now it's time to defy Dobbs
For nearly the last decade, abolitionists have called on the states to ignore and defy the SCOTUS. We have called on all to defy Roe v. Wade.
Now, after the overruling of Roe v. Wade and Casey v. Planned Parenthood in the landmark Dobbs v. Jackson decision, it's time for us to defy Dobbs v. Jackson.
In short, Dobbs is a nationally pro-choice and incrementalist decision.
Yesterday, I wrote a short list of bullet points concerning this decision. In that article, I wrote, "This is a victory for Christians who believe in the intrinsic value of human life in that it determines that the US Constitution does not protect abortion." In that limited aspect, Dobbs is a great victory. Indeed, the US Constitution does not protect access to abortion, and it's good and right that Dobbs establishes that truth. However, how Dobbs was argued may prove counterproductive in the long term.
I finished reading the majority opinion of Dobbs v. Jackson this morning, along with several legal analyses of this decision. I'm disappointed that Dobbs is not the major victory it seems to be. No one likes when someone "rains on their parade," and no one likes someone who only has negative things to say. I understand this and did not want to come to this conclusion. Yesterday, while I began reading the majority decision, I was hoping Dobbs would be "not enough" but still fundamentally a good decision. It was a sincere hope, but my hope was unrealized. I also understand that it may take time, for even abolitionists, to understand the problems inherent in the Dobbs decision. Those who disagree with this analysis are not my enemies, but I do want to urge patience and due diligence concerning this. Though overturning Roe and Casey are good things, that does not mean that Dobbs cannot include ideas and arguments that are unrighteous. One part of the decision can inact justice while other parts establish injustice. Do not be quick to celebrate. Be slow to speak.
Analysis
To put it in the simplest terms, Dobbs argues that abortion is not addressed in the US Constitution; therefore, it is unconstitutional to address abortion on the federal level.
A Cornell Law School legal analysis of Dobbs v. Jackson states,
Dobbs contends that the text of the Constitution does not mention abortion at any time. In comparison, Dobbs notes that while the Tenth Amendment denies states several powers such as coining money or making treaties, it does not deny states the power to restrict abortion.
To explain further, Dobbs decidedly does not say that the Constitution prohibits protecting abortion. Instead, Dobbs says that the Constitution is not relevant to abortion at all.
Perhaps the most crucial statement made in the Dobbs v. Jackson majority decision reads [pp. 78-79],
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
To clarify one point that may be unclear, "the people and their representatives" cannot be referencing the US Congress. Though this would make a nice loophole and open the door to federally abolishing abortion, the statement does not allow this understanding. "That authority" is being given back to "the people and their representatives" and "that authority" is defined in the same statement. "That authority" is the authority to "prohibit the citizens of each State from regulating or prohibiting abortion." Therefore, the authority being turned over is the states' authority, not the US Congress.
Dobbs also states [p. 2] that,
The Court's decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is "deeply rooted in [our] history and tradition" and whether it is essential to this Nation's "scheme of ordered liberty." Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation marks omitted). The term "liberty" alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the "liberty" interest protected by the Due Process Clause.
When reading the analysis and these excerpts from Dobbs, consider the points established in the argumentation.
Dobbs argues that the Constitution does not mention, explicitly or implicitly, abortion.
Dobbs argues that the Constitution does not prohibit the states from regulating abortion.
Dobbs argues that the life of the preborn is not a "fundamental right" that is "deeply rooted in [our] history and tradition."
Christians, let me be very clear. Dobbs sets the precedent for the idea that the life of the preborn is not a fundamental right. This decision could negate federal protection of abortion but also could block federal protection of the preborn. The language of Dobbs could effectively deem any federal abolition, personhood, right-to-life, etc. bill as unconstitutional. Further, regardless of differing views on incremental legislation, Dobbs could even block federal laws against practices such as partial-birth abortion.
To be sure, Dobbs doesn’t make any of this its “ruling,” but rather the arguments contained within are such that can be easily used against life in the future.
Many Christians are content with the right to abolish abortion going to the states. These sentiments typically come from two motivations.
Pragmatism
Localism
Pragmatism
First, considering pragmatism, we are called to honor God before we are called to save lives. For the same reasons abolitionists have opposed incremental legislation that could essentially read "and then you can kill the baby," the Christian perspective should understand that Dobbs could effectively say, "but the states can kill the babies."
This is why Dobbs is just another form of pragmatic incrementalism.
As argued previously (going back several years), the abolitionist position is that a state abolishing abortion is not a form of incrementalism. Abolishing abortion in the jurisdiction where you have authority while other jurisdictions continue abortion is not incrementalism. In the same way, the USA abolishing abortion while China continues it is not a form of incrementalism.
In contrast, abolishing abortion in a fraction of your jurisdiction, or allowing abortion to continue within your jurisdiction while abolishing or allowing abolition in only a fraction of your jurisdiction, is textbook incrementalism.
Consider if we applied the logic and morality of Dobbs to an individual state. If the Supreme Court of Oklahoma decided that the Oklahoma Constitution does not speak on abortion, therefore each county and city could then decide on abortion, would we consider this justice?
Simply passing the buck to lower jurisdictions is not immediatism, abolition, or justice. The Federal Government claiming to have no responsibility to preserve life does not wash their hands clean.
Yet some will see this as a means to decrease abortion. I praise God when abortion is decreased, but we should also not be shortsighted. Decreasing abortion in, let's say, Alabama, while rates increase in far more populace states, let's say, California, is not necessarily a net positive. This potential long-term problem is exacerbated when we consider that Dobbs delays abolition on the federal level. Though Dobbs could lead to states abolishing abortion (note, it has not yet), it could also lead to blocked efforts to abolish abortion nationally. This potentially adds several years of states like New York, California, and Maryland continuing abortion and expanding abortion access.
Ultimately, the pragmatic arguments fall short for the same reasons they have always fallen short. They do not take into account the higher calling to obey God and to establish justice, but also the pragmatic path is shortsighted and does not take into account unintended consequences.
Localism
Second, localism or a belief in “state’s rights” is an insufficient reason to be content with only state-by-state abolition.
Though I prefer more localized and less centralized civil governments, as long as we have a centralized government, we have a duty to call for justice as broadly as possible within that jurisdiction. In this case, being an American citizen, the broadest jurisdiction legally possible is the national or federal level.
Consider ancient Christians counseling a Ceasar of Rome. Though we can all agree that the civil structure of the Roman Empire was tyrannical, would we not urge Ceasar to cease persecuting Christians within his imperial jurisdiction? Or would we instead suggest to Ceasar that the Roman provinces should decide the fate of Christians? If localism meant allowing, let's say, Thrace and Britannia to crucify Christians, but Italia and Gaul outlawing Christian persecution, is localism virtuous or justice in this context?
Localism is often the right path, but do not idolize it. Sometimes the greater jurisdiction has the just cause, and sometimes the lesser jurisdiction has the just cause. Do not allow a preference for localism or State's rights to become humanist autonomy on a different scale.
Conclusion
I completely understand the celebration. Dobbs, after all, does some important things. But, I also believe most Christians are rejoicing before reading or understanding this decision. Which I also find understandable. It's a long read and, naturally, full of legal language.
To reiterate a vital point, it's good and right that Roe was overruled, and it's good and right to affirm that the Constitution does not protect abortion. But the cost of that victory was in arguing that the Constitution does not protect life. Now and moving forward, the legal precedent is that the Constitution does not protect the preborn. This overruling comes at a steep and bloody cost.
One aspect of this discussion that should be at least mentioned is that the conservative justices may simply not abide by their arguments. Though the Dobbs decision is not unclear about the federal government's role in protecting the preborn (as in, the federal government has no role), I find it at least possible that some conservative justices simply do not care and will allow federal laws regardless of judicial precedence. In other words, I don't believe that some of these justices are above being dishonest and politically partial. The arguments that were useful in overruling Roe yesterday may be conveniently forgotten when examining a federal law abolishing abortion. But opposition to these laws will not be forgotten and may prove to be a substantial hurdle, not to mention a blight to the integrity of a few of these conservative justices. All the while, they could have used this case to abolish abortion. Believers, we are called to fight for justice, but also in a just manner. We aren’t called to be tricky and deceptive with the law in order to win. Even if the cause is just.
Yes, this obstacle can be overcome, but only by overruling or ignoring Dobbs v. Jackson. Though Dobbs declares that the Constitution does not protect life, it's the duty of congressional legislatures to ignore Dobbs and strive to protect life on the national scale, despite concerns that those protections may be ruled unconstitutional. Whether the path forward is to pass a Constitutional amendment or ignore Dobbs, Dobbs will likely prove to be a delaying obstacle for true justice and true abolition; an obstacle that could cost millions of lives. Not only an obstacle, but an entirely unnecessary obstacle. Either the SCOTUS could have abolished abortion in this case or states could have defied the courts long ago. Instead, Dobbs abolished federal protection of abortion and gave the states the “right to choose.” Supporting this “right to choose” for the states is like saying you’re “prolife on a state level, but prochoice nationally.” This is as morally consistent as being “personally prolife, but supporting the right to choose legally.” Dobbs is prochoice, but on a national scale.
Only time will tell with any certainty if this decision saved any lives in the long term. I pray and hope that I’m wrong about this and Dobbs shows itself, at least functionally, as no enemy of abolition. But what is certain is that the language of the Dobbs v. Jackson decision does not reflect truth or justice. This is why now is the time to defy Dobbs.