Bench Memos

Law & the Courts

A Massive Defeat Masquerading as a Victory

In the course of an interesting interview on Public Discourse today, Ross Douthat contemplates the possibility that the Supreme Court in Dobbs v. Jackson Women’s Health Organization (to be argued on Dec. 1) might do nothing more than a “‘chipping away’ at Roe v. Wade [that] just clears more space for … second-trimester abortion bans.”

With considerable understatement, Douthat acknowledges that “it’s something of a struggle to figure out what the conservative judicial arguments marshaled on behalf of that kind of halfway step would be.” (Emphasis in original.) But, he says, “[i]f you’re just doing political analysis,” a result like that “seems incredibly plausible.” A ruling under which “first-trimester abortion remains a constitutional right” would, he contends, be “the lowest-salience result in terms of our politics,” as it “would be treated as a modest but real victory by the pro-life side, without being a hugely powerful motivational issue for liberals.”

I strongly disagree that pro-lifers would regard such a Court ruling as a “real victory.” They should—and I believe would—instead recognize it as a massive defeat, not all that different from the “devastating, generational defeat” that Douthat recognizes that a re-affirmation of the Roe/Casey regime would be. That is so for two simple reasons.

First, there is no conceivable ground for holding that there is a constitutional right to first-trimester abortion. Any justice adopting that approach would just be making it up and, by doing so, would squander the best opportunity in decades to overturn Roe and Casey and probably make it impossible ever to do so.

Second, such a ruling would do very little to enable states to end the slaughter. According to recent data from the Centers for Disease Control and Prevention:

In 2018, approximately three fourths (77.7%) of abortions [in the United States] were performed at ≤9 weeks’ gestation, and nearly all (92.2%) were performed at ≤13 weeks’ gestation.

If states were able to ban abortion after the first trimester, the real-world effects would be very small. In those states that would adopt such a ban, the relatively small number of women who, in the absence of a first-trimester deadline, have delayed getting an abortion would suddenly have a very strong incentive to beat any deadline a state adopted.

There is only one result in Dobbs that pro-lifers should treat as a genuine victory, and that is the full restoration of state authority to protect the lives of the unborn from conception.

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