Dobbs and Its Critics

T he latest issue of National Review includes my rundown of the best common arguments against Justice Alito’s majority opinion in Dobbs, and why they’re wrong. Inevitably, I didn’t have space or time to respond to every noteworthy criticism. Here are a few notes that didn’t make it in, organized by the name of the critic.

William Saletan

In the Bulwark, Saletan takes the common argument that Alito provides no serious basis for distinguishing between Roe and the precedents he claims to leave untouched (Griswold, Lawrence, etc.) and gives it a twist. The key distinction, for Alito, is that abortion involves the taking of a human life (according to the Mississippi law at issue in the case) or at least of “potential life” (as Roe v. Wade styled it).

Saletan doesn’t buy it on the ground that the state’s interest in life is no more grounded in the Constitution than the parts of Roe that Alito rejects. “Six times in Dobbs . . . the Court swears that the ‘potential life’ principle, because it applies uniquely to abortion, will protect these other cases from being overturned. But not once does the Court cite a constitutional basis for that principle.”

The first sentence is an overstatement of what the opinion says, but let’s leave that aside and look at the second. It’s strange to imagine that the Court needs to find a constitutional basis for state governments’ interest in protecting human life. The states’ police powers are not, and have never been thought to be, derived from the Constitution. See Jacobson v. Massachusetts, the 1905 decision upholding a state’s compulsory vaccination law. The Court made no attempt to find a provision of the U.S. Constitution that grants states the power to protect public health. It conceives of this power as one that state governments had before the Constitution was adopted and did not surrender in joining the Union.

Saletan’s remarkable achievement is to have identified one of the few sound portions of Roe v. Wade and rejected it.

Aaron Tang

Aaron Tang, a law professor at UC Davis, has been a font of misinformation about the history of abortion law, misinformation that even the Dobbs dissenters wisely decided not to touch. After Politico obtained and published a draft of Alito’s opinion, Slate ran with one of Tang’s claims: a 1909 case shows that Oregon still allowed abortions early in pregnancy, and by extension that other states did too, and thus there is, contra Alito, a longstanding tradition of recognition of a right to abortion.

Tang’s argument had been refuted months before the Slate article appeared. A defendant’s conviction for corrupting a minor had been quashed because the trial judge allowed a witness to imply in her testimony that the accused had committed an abortion. The appeals court found that allowing testimony about “a felony concerning a matter in no way connected with the misdemeanor for which he was on trial, was not only irrelevant and hearsay, but so manifestly prejudicial as to make a reversal of the judgment of the lower court and a granting of a new trial necessary.”

The prosecutors then tried to get the conviction reinstated by claiming that abortion early in pregnancy was not a crime. About this prosecution argument, a few points: (1) It failed; the conviction stayed quashed. (2) The court, unchallenged, had held that a jury would consider the abortion a felony. (3) The court decided it would not judge the claim about the feloniousness of abortion early in pregnancy on the grounds that it did not need to do so to dispose of the prosecution’s argument and that siding with the prosecution on the question would not have yielded a reinstated conviction. (4) Key sources the prosecution cited for its claim of abortion’s legality contradict, or do not support, that claim.

The prosecution was making a desperate and unsuccessful argument. So, now, is Tang.

Dana Milbank, Gillian Brockell, others

The Dobbs dissenters, in one of their low moments, ridicule the majority opinion for citing the 13th-century jurist Henry de Bracton — ignoring the facts that Justice Blackmun repeatedly cited Bracton in Roe, and that Alito was correcting Blackmun’s historical account.

Several critics of Dobbs have sought to discredit it by noting, well, all the ways he was a man of the 13th century. But the ridicule is often ignorant. Washington Post columnist Dana Milbank mocks Bracton twice (and again here) for speaking of women giving birth to “monsters.” Gillian Brockell, a history blogger for the Post, seizes on the same word. Bracton says women “sometimes give birth to literal monsters,” she marvels.

I suppose we are to believe that Bracton thought that women gave birth to little Godzillas. But here’s one account of the etymology of monster that suggests otherwise: “Monster entered the English language between the 12th and 14th centuries from the Old French term monstre, and it appears the monstre was used in Middle English as either an evil omen or frightening physical deformity well into modern English when it became monster.” And another: “early 14c., monstre, ‘malformed animal or human, creature afflicted with a birth defect,’ from Old French monstre, mostre “monster, monstrosity” (12c.), and directly from Latin monstrum ‘divine omen (especially one indicating misfortune), portent, sign; abnormal shape; monster, monstrosity’. . .” The OED’s etymology also speaks of the use of the term to refer to “disfigured persons” or “misshapen beings” in the 13th century.

Bracton is, in short, talking about what we would now call babies with severe abnormalities. These days, of course, we know better than to associate such debilities with horror or omens. Our society is much more enlightened than that. Instead, a lot of us are very keen on making sure that such children can be aborted in the womb.