Indeed, the fetus is the indisputable star of the Dobbs opinion. That’s not necessarily obvious at first reading: The 79 pages of the advisory are laced with lengthy and, according to expert historians, very partial and essentially irrelevant accounts of the history of the criminalization of abortion. There is surprisingly little factual law on all those pages. And women are missing, as I have noted before. It is scattered in paragraphs about the view that the fetus shines.
“None of the other decisions cited by Roe” and Planned Parenthood of Pennsylvania v. Casey, the 1992 ruling reaffirming the right to abortion, “resolved the critical moral question posed by abortion,” Judge Alito wrote. “They are therefore unsuitable.” Going on, he wrote: “The disagreement has a lot to say about the effects of pregnancy on women, the burdens of motherhood and the difficulties poor women face. These are important concerns. However, the disagreement does not reflect the same respect for a state’s interest in protecting prenatal life.”
This was a strange critique of the dissent, jointly signed by Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan. They argued strongly for enforcement of the 1992 Casey decision, which in fact stated, in a departure from Roe, that the state’s interest in fetal life was present from the moment of conception. Casey allowed states to impose waiting periods and “informed consent” requirements that the court had deemed unconstitutional in the years following Roe v. Wade.
Justice Alito knows Casey’s decision very well. As a judge on the federal appeals court, he served on the panel that upheld most of Pennsylvania’s abortion laws in the case that became Casey. Then-Judge Alito, alone on the panel, wanted to uphold a state law provision requiring a married woman to notify her husband of her plan to have an abortion. Upholding the appeals court’s decision, the Supreme Court in Casey stressed in one of the advisory’s most vivid passages the unconstitutional burden that the marriage notice requirement places on women: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from having an abortion, just as surely as if the Commonwealth had banned abortion in all cases.” Perhaps that aspect of the Casey decision still gnawed. In any event, Judge Alito’s attack on his deviant colleagues for ignoring the state’s importance in fetal life was gravely misguided.
Of course, Casey didn’t go far enough from his point of view because the weight the court assigned to the life of the fetus was well below 100 percent. The Casey decision was five days before 30 years old when the court overturned it on June 24, along with Roe v. Wade. Since this was their goal from the beginning, the judges in the Dobbs majority had really only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.
There is also another norm, one that has kept the rest of us from proclaiming the ubiquitous role religion plays in today’s Supreme Court for too long. Realizing that now is the time to challenge that norm, I’ll take my own humble step and rename Dobbs for the religion issue it is, since nothing else explains it.