In his article, The Wages of Dobbs: And the Confusions of Conservative Jurisprudence, written for the Summer 2023 issue of the Claremont Review of Books, Professor Hadley Arkes reflects on Dobbs v. Women’s Health Organization and how the overturning of Roe is true to form for the last four decades of conservative jurisprudence. The conservative Justices who cleverly avoid questions of rights and morality, he conjectures, maintain their integrity as judges and achieve desired ends, but do so in a way that results in judicial confusion and moral inaction.
At the time of its decision, Professor Arkes describes, how Roe v. Wade transformed the law of the land on abortion from something secretive and taboo to something approved and promoted. In that way, the Supreme Court was sending the moral message that a woman had the freedom to kill her unborn child. Thus, with the Court’s decision in Dobbs, it made sense for women to feel they were being stripped of “an anchoring right of their personal freedom.” But there was no moral understanding offered by the conservative Justices on the moral understanding offered to counter this sense of “moral assault and deprivation.” The question of the morality of abortion was avoided by the conservative majority in the Dobbs opinion. This, Professor Arkes clarifies, was not done as a matter of inadvertence, but rather as a part of conservative jurisprudence that the Justices took it as a matter of pride to avoid any judgment on the moral substance of the issues before them.
The Court had set itself into a moral straightjacket: the Constitution said nothing about abortion and thus, the Supreme Court could not directly adjudicate upon it. However, the Constitution says nothing about marriage as well, but this silence was not the case in Loving v. Virginia. From these differing responses, Professor Arkes points out the tension in the Dobbs case and the corner the conservative Justices have backed themselves into by avoiding direct adjudication in regards to abortion, that their inaction is in fact an action. The article ends with a look towards the possible future, with the remaining certainty that conservative Justices will continue to skirt morality in their decisions to come.
Below are selected excerpts. The full article can be accessed from the Claremont Review of Books here.
“The decision in Dobbs, then, has imparted a new energy and resolve to the partisans of abortion to use the instruments of federal power as they’ve never felt confident enough to engage them before. And in the cruelest irony, it has saddled the pro-life movement with a heavier burden of justification now in appealing to the Congress at the national level to brake, where it can, the engine seeking to rip through all restraints on abortion.”
“The Supreme Court, then, in Dobbs could have sent the matter back to the states with the premise that these laws on abortion protect real human beings—and invite the states to consider how the killing of these small human beings will be reconciled with their other laws on homicide. The conservative majority had to go out of its way to avoid saying something so simple, so direct, so decisive.”
“In the meantime, we can look ahead and conjecture. My own hunch—and I dare anyone to take the bet—is that 20 years from now, abortions will still be performed in staggering numbers in New York, Illinois, California, and other places. The devotees of originalism and conservative jurisprudence will be appalled, but they will quickly point out that they had offered the only remedy they could supply, and they made it clear over the years that they were never promising to do anything more.”