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Understanding Dobbs

An interview with Notre Dame law professor, Paolo Carozza, helps us understand the particulars of the Supreme Court Dobbs decision

"Justitia" by Raphael Morghen

[This is an interview originally given to an Italian journalist for publication in Italian and for a European audience.]

Professor, in what way is the Supreme Court Dobbs decision “historic”, as all the American news sources are claiming? What is your judgment regarding the decision?

Yes, there is no doubt that this is a historic judgment, with deep and lasting repercussions on law and politics in the United States, no matter how one regards the merits of the decision. It puts the difficult and dramatic question of abortion back into democratic politics in a way that has not been possible for 50 years. It is important to emphasize that the decision does not in any way impose constitutional restrictions on abortion, it merely rules that the US constitution neither requires nor prohibits access to abortion, and therefore it reverts the question to the state law of the individual states of the USA. Seen from a more global perspective, this also pulls the United States more closely into line with the practices of the majority of other nations, instead of having the extremely unrestricted abortion license that Roe v. Wade had mandated for half a century. As we are already seeing, some U.S. states will restrict abortion much more, and some much less, and the majority will try to draw complicated compromises among the competing views of their citizens, allowing abortion under some circumstances but not others and for more or less limited periods of time -- just as most European states do, for instance. And finally, it is worth pointing out that the Dobbs decision has significant implications for the interpretation and application of the constitution more generally, and for the appropriate role of judges in our democratic republic. It is a decisive step back from the centrality that cases like Roe give to judges to resolve for us the fundamental moral controversies that stir the nation.

What were the Court’s reasons for rejecting the constitutional right to abortion?

The judgment is fundamentally a technical and juridical one. It does not weigh the moral arguments in favor of or against a right to obtain an abortion, or the policy considerations that would support more restrictive or more liberal approaches to abortion. Indeed, it explicitly rejects those forms of arguments, insisting that the only relevant question is the correct interpretation of the constitution itself. The majority judgment takes both a textually and an historically-informed approach to that question, arguing both that the constitution nowhere recognizes a right to abortion, and also that there is no historical basis for regarding a right to abortion as rooted in the nation's history and tradition. Justice Alito, writing for the majority, shows convincingly that the original judgment in Roe v Wade really had no valid legal foundation at all (something that even many jurists who support abortion rights in the United States have long acknowledged).

What were the reasons given by the three dissenting judges for opposing the decision in their dissenting opinion?

The most constant and insistent theme of the dissenting opinion is that the removal of the constitutional guarantee of access to abortion poses a direct and grave threat to the autonomy and equality of women; that is, that abortion access is necessary to women's freedom and equality as citizens. It is less a juridical argument (although other arguments of a more technical juridical form do have their place elsewhere in the dissent as well) than it is fundamentally a political and sociological one. The majority's response to this claim is that these highly contested political-moral controversies, on which tens of millions of Americans disagree with powerful arguments, demonstrate precisely why it is important for the Court (nine unelected and fallible individuals with life tenure) to limit itself only to what the constitution clearly provides and not to substitute its own moral and political judgments for those that emerge in the democratic process of self-governance among the American people.

What will happen now with regard to abortion in the United States?

From a legal and political point of view, as I already pointed out in answer to the first question, the extent to which abortion will be permitted or restricted will now be decided in the legislatures of the separate states of the U.S., and there we will see a patchwork of widely varying approaches, reflecting the diverse political-social realities of different parts of the United States. To me, the much more important and difficult question is how we can develop and implement social policies and practices that fully embrace the life, dignity, health, and flourishing of both unborn children and their mothers. This is not something that we have done well in the United States until now, for many complicated reasons.

In contrast to what has happened in Europe, in the United States the debate regarding abortion has always remained alive and intense, as can be seen even from the opposing factions that have celebrated and protested in front of the Supreme Court. Why is there this difference?

This is a fascinating question that has roots much deeper than just the question of abortion. The dynamic and distinctive interrelation between fundamental rights, politics, and the courts is something that goes back to the earliest period of the American republic. Almost two centuries ago Alexis de Tocqueville noted that it was rarely the case in America that any political controversy failed to become a judicial one as well. But the opposite is true as well: it is rarely the case that judicial decisions over controversial issues serve to bring an end to the political controversy that first generated them. The controversy over abortion is an especially dramatic example of that: paradoxically, precisely because the Supreme Court in Roe v Wade tried to remove abortion from the political and legislative compromises of the people through their elected representatives, it was widely rejected as illegitimate from the start. In short, the judiciary and courts in general in the U.S. system tend to be much more directly immersed in political life in the United States in various ways (with some good consequences and some bad ones), while court decisions in European countries are (comparatively) less in the public eye and public discourse. In addition, some explanation of the persistent attention to abortion might be found in the public visibility and presence of U.S. religious communities, especially Christian ones, which have endured more than in Europe in the last century, and which have kept the pro-life banner flying high over the decades. To me it is remarkable that my children's generation is considerably more pro-life than we were at their age. Much of this may be due to the power of science in their imagination. The immensely greater knowledge that we have of embryology and of human development from conception through birth -- including the vivid visual imagery of that -- is very powerful testimony to the humanity and thus dignity of every unborn human being.

How important were the three appointments that Donald Trump made to the Supreme Court in this decision?

Trump's three appointments have been absolutely decisive, with all three in the 5-person majority to overrule Roe. But I think it is important to emphasize, also, that for all three of them this decision is consistent with a much broader, sophisticated and serious (even if still highly contested, of course) approach to constitutional interpretation and adjudication. They were nominated, and supported by conservatives more generally (not only Trumpists), not merely because of a hope that Roe v Wade might be overruled but more generally because of a belief that a more restrained and limited role for judges is, in the long run, healthier for our constitutional democracy.


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