Responding to Richard Doerflinger’s critique of “Waiting for Dobbs,” Prof. Arkes asserts that conservative justices could successfully outlaw most abortions by returning to Justice White’s standard: only abort to save the mother’s life. At the same time, however, White did the pro-life cause a lasting disservice by focusing not on the rights of unborn babies but on the abuse of “raw judicial power.”
“Richard Doerflinger charges me with suggesting that in 1986, in the Thornburgh case, White signaled a willingness to accept abortion. But Doerflinger seems to have slipped past that striking moment that was the key to my piece: the jolt of surprise felt by Justice Stevens as he read White’s opinion. Stevens thought that White was willing to concede some ‘fundamental’ right to abortion, and yet he was appalled that White was not willing to see any critical difference between a fetus and a child or an adult human being.”
“The only thing White was willing to concede was expressed by Justice Rehnquist when he took it as a given that a state could not ‘prohibit an abortion. . .where the mother’s life is in jeopardy.’ White was making the same point when he wrote, in Roe, of ‘those who seek to serve only their convenience [in abortion] rather than to protect their life or health.’”
“I was bringing back White here to cast a light on a possible path that the conservative justices might take in the Dobbs case if they sought that ‘low door under the wall.’ They could avoid stirring a panic in some quarters by holding there is – and remains – something called a ‘right to abortion.’ But that right would be confined to that vanishingly small set of cases where the mother’s life is in danger. In that event, virtually all of the restrictions enacted by legislatures over the years, to protect unborn children – and struck down by the courts – could now be restored.”
“[White] could have set the ground for a simple, compelling conclusion: that Texas was amply justified in extending the protections of the law over these small human beings. But instead, White switched his focus: the principal wrong now was the wrong done to people in the States, in depriving them of their right to deliberate and vote on this question of abortion.”
“White defined the chief wrong of the case as the flexing of ‘raw judicial’ power – that the Court had no business in taking this case when abortion is mentioned nowhere in the Constitution. With this move he and Rehnquist set the cast of a conservative jurisprudence that would endure now for forty-nine years, and take pride in persistently steering around questions of moral substance.”
Read the full piece here.