CHAPTER 11 After the Overruling of Roe: The Natural Law Moment

It was one of those inversions of the constitutional order not widely noticed. With a mounting sense of something grave at stake, presidential elections became charged with the question of whether the Republican candidate was likely to choose the kind of judges who would cut back or overthrow Roe v.

And now the moment had come when this question, contested so bitterly for forty-nine years, seemed to have been brought to a point of resolution—at least for now. Six conservative justices on the Supreme Court came together in support of a decision to overrule Roe v. Wade in the case of Dobbs v. Jackson Women’s Health Organization.¹

The fact that the decision was the upshot of so many years of constant combat by both sides, in legislatures and courts, was itself a telling sign. Ten years after Brown v. Board of Education, public sentiment in opposition to racial segregation had jelled to the point that Congress could enact the landmark Civil Rights Act of 1964. Forty-nine years after Roe v. Wade, public resistance had still not been quelled. No slogans, however loudly and persistently sounded, could counter the findings of embryology, or dislodge the conviction that abortion involved the killing of a small, innocent human being. Public opinion remained divided, with only slight shifts over the years. About 20 percent of the population would outlaw abortions in all circumstances, while about 22–27 percent would accept abortion without limits.

In the aftermath of Dobbs, we might bring back the words that Lincoln spoke about a country deeply and violently divided on the searing question of his day. “Neither party expected,” said Lincoln, that the conflict would have “the magnitude or the duration which it has already attained.” Both sides in the Dobbs case were bracing for a decision quite resounding and fundamental. But for the opponents of abortion the decision in Dobbs was far less fundamental and decisive than they hoped it would be; and for the defenders of abortion, it would not be as devastating as they feared it would be.

The decision of the Court held closely to the line that had been long settled among conservative lawyers: the declaration of a constitutional right to abortion in Roe was the exercise of “raw judicial power,”⁴ because nothing in the text of the Constitution had even hinted at a right to kill infants in wombs.

On the substantive rights or wrongs of abortion, conservative jurisprudence had nothing to say. And in the opinion for the Court in Dobbs, the conservative majority held to that line with tight control, even when the momentum of the argument worked strongly to pull them in another direction. That the conservative justices would hold to that line was a sober fact long accommodated by the pro-lifers who had worked so strenuously to seek the overruling of Roe. People had traveled from all parts of the country every January to form a massive pro-life march in the worst weather that Washington serves up, and they had never carried signs decrying a grievous mistake of jurisdiction. No rage was shown over judges crossing into the wrong legal lane. For the people assembled from all parts of the country for this annual march, the deep wrong was the dismembering or poisoning of babies in wombs. And yet now that Roe was overturned, they would see the massive killing in abortion going on, with no serious limits or restraints, in New York, Chicago, Los Angeles, and other cities in the blue states. On the other side, the pro-choicers would find that this right they had come to prize would still be available where most of them lived. Other people were likely to be no farther than a day’s drive from a state that offered abortions with virtually no restraints. To make that trip even more encouraging, proposals were springing up to offer payments for travel and hotel expenses for women willing to make the drive.

These women had been given the confidence to think that they had a deep, constitutional right engaged here. They had a point, then, in asking why such a deep right would be lost to them if they suddenly moved to another state.

In the Dobbs case, the law in Mississippi barred abortion after fifteen weeks in the pregnancy. The state offered the kind of “factual findings” that the lawyers in Roe had supplied years earlier, though its statement of the facts was rather less refined than that earlier version: according to the brief from Mississippi in Dobbs,

The legislature… found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the “unborn human being begins to move in the womb,” at 9 weeks “all basic physiological functions are present”; at 10 weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails… begin to form”; at 11 weeks “an unborn human being’s diaphragm is developing, and he or she may “move about freely in the womb”; and at 12 weeks the “unborn human being” has “taken on human form in all relevant respects.” [Brackets and ellipsis in original.]⁵

Well, to be a bit more finicky: the beating of the heart is measured or heard at five or six weeks, but the hearing of the heartbeat simply marks another phase in the development of a small being already living and powering its own growth.

Justice Alito would have to deal decisively with that matter of viability, along with the curious theory that the “stages” in pregnancy have any bearing on the human standing of the unborn to receive the protections accorded to other human beings, of varying sizes, in the law. But before he reached that point, he declared the judgment of the Court that “Roe and [Planned Parenthood v.] Casey must be overruled.” And they were to be overruled precisely along the lines that were now long settled in the orthodoxy of conservative jurisprudence. “The Constitution makes no reference to abortion,” Alito wrote, “and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”⁸ The right to abortion did not fall within the narrow class of rights protected under the Due Process Clause, rights that were “long rooted in the tradition” of our law. Whether they were substantively true or justified as rights was another question, put to the side; for the accent was on rights readily recognized because they have long been familiar to us.

Alito did not address the critical matter of “viability” until midway through his opinion, well after he had run through a lengthy list of statutes and holdings in common law dating back to the thirteenth century. The record revealed that the law had punished abortion as at least a grave misdemeanor, even before “quickening,” when the movement of the child could be felt. “Viability” was taken by the Court in Roe as the critical marker: roughly, the point of development sufficiently advanced that the child could be sustained outside the womb. Viability was now the line that needed to be dissolved and refuted here, and Alito set to work.

In the first place, the whole notion of dividing a pregnancy into trimesters was, as Alito said, “the Court’s own brainchild.” Neither litigant in Roe had put that idea forward.⁹ The point had been made for years that the line of “viability” was shifting and deeply unclear. As Justice O’Connor had observed long ago, the onset of viability keeps getting pushed back with advances in technology. At the time of Roe, viability was estimated at about twenty-eight weeks, but it has now advanced to about twenty-three to twenty-four weeks. But how could the definition of a human life deserving of the protection of the law depend on the current state of the art in incubators?

Viability depends also, as Alito noted, on a “ ‘number of variables,’ including ‘gestational age,’ ‘fetal weight,’ a woman’s ‘general health and nutrition,’ and the ‘quality of the available medical facilities.’ ”¹⁰ But just why is any of this relevant to the standing of the child as a human being who can claim the legal protection that would flow to any other human being when marked for a lethal act? Alito brought the matter into focus in this way: “If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’… why isn’t that interest ‘equally compelling before viability’?”¹¹ Alito was drawing here on the stirring dissent of Justice Byron White in the 1986 Thornburgh case:

The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State’s interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State’s interest, if compelling after viability, is equally compelling before viability.¹²

This moving passage made perfect sense—if one took as the grounding predicate the one supplied by the lawyers from Texas in Roe: that the child in the womb has been nothing other than human from its first moments, that it receives its nourishment from its mother but is a separate organism, with a genetic definition of its own, and has never been merely part of the mother’s body. From that perspective, the point of viability was just another phase in the development of the same human being, living and growing.

But the justices who were willing to sustain a right to abortion over the years were willing to hold to that line of viability precisely because they wished to avoid that persistent, awkward truth: that the child has never been a part of the mother, and never anything but the same human being at any stage of the pregnancy. Even when it came to the later stages of pregnancy, the child was referred to persistently as mere “potential life.” For the sake of staying faithful to those earlier concessions of the Court, Justice Alito was content to keep using that phrase, even though he surely knew that it made no sense: The embryo or fetus in the womb can never have been merely “potential life.” A pregnancy test announces the presence of a living, growing entity. If that were not the case, an abortion would be no more “indicated” than cosmetic surgery. And if there is a living being in the womb, it cannot be an orange or a bird; it can be only a human being. But as the opinion went on, it seemed evident that Alito was still reluctant to say those magic words that the lawyers from Texas had spoken in their briefs half a century earlier, even though their point, about the human standing of the unborn child from its first moments, was not only sound but inescapably true. I do not think that Alito’s caution here sprang from a puzzlement over filling in the ellipses or connecting the dots. It seems to me that his reticence, or his circumspection, had something do with the theory of conservative jurisprudence that was forming the cast of his opinion. That may explain why he held back, on the matter of viability, from the answer that was truly telling and decisive, the answer that Natural Law would have given to the ordinary Man on the Street: Why would any person lose his standing as human being because he was weak and dependent on the care of others? Do patients in intensive care lose their standing as rights-bearing beings? To a person of any ordinary sensibility, a human being in need of care would seem to engage the solicitude of others to offer that care. When stripped to its core, the argument over viability reduces to nothing other than the classic Rule of the Strong, or Might Makes Right. The very weakness of the child in the womb, its need for the protection and nourishment of others, was taken as the ground for its erasure as a rights-bearing being. That this meaning of “viability” has somehow gone unnoticed by people with college educations may be a measure of the mental screening that had to be absorbed as people settled in comfortably with a right to abortion, without—shall we say?—a demanding reflection.

The long settled position among conservatives was that the Court in Roe had taken out of the hands of citizens at the local level the question of whether small human beings in the womb were covered under their laws on homicide. As Alito put it, “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves to the people.”¹³ When the majority in Roe lifted this issue of abortion to the level of a constitutional right under federal law, they made this issue the business of the national government. With that move, confirmations for the Supreme Court would be attended by fierce and escalating libels and a poisoning of our political life. The conservative position through all of this was that the poisoning would cease when abortion ceased to be the business of the national government.

Curiously, it seemed to go unnoticed that when the Supreme Court made abortion the business of the national government, it made this subject the business of the other parts of the national government, and not solely the courts. As we have seen, the national government had many reasons for dealing with abortion well before Roe v. Wade. There was the matter of abortion in the medical facilities of the federal government, in the territories, and in the District of Columbia. Inevitably the question would have to arise as to whether medical care supported by the government was permitted, or even required, to pay for abortions with federal funds. And would abortion be permitted in medical schools, hospitals, and clinics receiving federal aid? If so, it would fall to Congress to consider the protection of “conscience” for doctors and nurses who did not wish to be conscripted to perform abortions. The executive branch would also wield discretion of its own here: Would the National Institutes of Health use fetal tissue in research? Would American diplomats resist schemes to promote abortion in international organizations? One way or another, decisions would have to be made, and the powers of the federal government would come into play, even with a light touch, in marking the limits to “the right to abortion.”

Or that, at least, is what some of us sought to bring about in advancing the most modest first step in legislating on abortion: a proposal to protect the lives of those babies, born alive, who had survived abortions. Here was the chance to establish a limit to the freedom to have an abortion that might possibly be supported by people on both sides of the controversy. One federal judge had already held that there was no obligation to preserve the life of a child who had survived an abortion and lingered for twenty-one days. He referred to the born child as a “fetus,” and remarked that this fetus “was not a person whose life state law could legally protect.”¹⁴ The Supreme Court quietly vacated that judgment but neglected to say anything emphatic about what was wrong with it. Still less did the Court take time to affirm that the right to abortion in Roe v. Wade must have some limit—and that limit must surely be at least when a child is born alive. If the Court had indeed vacated that judgment on the child born alive, apparently that judgment did not make it out into the country.¹⁵ For the survivors of abortion were being killed in numbers even larger than we had imagined at the time. That fact became brutally clear several years ago with the discovery of Dr. Kermit Gosnell’s abattoir in Philadelphia. Botched late-term abortions brought the need to snip the necks of those babies who had inconveniently survived. The police got wind of the fact that rather grisly things were taking place in Gosnell’s filthy clinic, but they knew that it would be better for them to avert their eyes. Whatever was going on in those clinics, they had the sense that it was somehow taking place on the outer edges of a constitutional right.¹⁶

To counter that sense, some of us thought it would still be worth it to mark a limit to abortion at the point of live birth. The bill was called, in awful legislative language, the “Born-Alive Infants Protection Act” (2002). Since I had some hand in making the case for that bill in public writing and in walking the halls of Congress, I was given the privilege of leading the testimony on the bill in the Judiciary Committee of the House.¹⁷ I recall that moment now in order to make again a point that has still not broken through the fog on this issue: Once the federal judiciary made the “right to abortion” the business of the federal government, there was no way to exclude the Congress and the executive branch from the authority to deal with abortion at a burgeoning number of points, all of which would require judgments to be made. The decision to return abortion to the political arena in the states cannot possibly perform the trick, then, of removing this issue from the vast field covered by the national government.

As we sought to explain this point and engage the powers of Congress, we reached back to a classic opinion of Chief Justice Marshall in Cohens v. Virginia (1821). Marshall argued there that “the judicial power of every well constituted government must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws” [emphasis added].¹⁸ And yet, even jurists are persistently taken by surprise by the corollary of that axiom: that the legislative power must be coextensive with the judicial power. Any issue that comes within the competence of the federal judiciary must come, presumptively at least, within the reach of the federal legislature and federal executive as well. For how could it be possible that the federal courts are competent to address abortion in all of its dimensions, while the doctors of the law ponder deeply over the question of whether Congress may legislate on the same subject?

And so we proposed, as part of the premises of the bill, this “finding” to restate the very logic of the separation of powers:

If the Court can articulate new rights under the 14th Amendment, whether civil rights or a ‘right’ to abortion, the legislative branch must be empowered to vindicate those same rights, on the same clause in the Constitution where the judges claimed to find it, and in filling out those rights, marking their limits. The one thing that should not be tenable under this Constitution is that the Court can articulate new rights and then assign to itself a monopoly of the legislative power in shaping those rights. [Emphasis added.]

To deny that proposition is to remove the Supreme Court from the web of restraints that mark the character and logic of the separation of powers. But Justice Alito’s opinion in Dobbs reflected the understanding, long settled in conservative circles, that the power over abortion would lie mainly with the “police powers” of the states. And that line of argument, quickly picked up by Republican candidates to Congress, now casts a pall of doubt on any attempt to legislate on abortion at the national level, even to mark the limits of abortion at the child born alive. The insistent theme of conservative jurisprudence has been that the matter of abortion belongs entirely in the states because there is no consensus and no clear truths that bear on the question of taking fetal life. That this teaching has taken hold even in the most respected and authoritative organs of conservative opinion was registered with a bracing clarity by the editors of the Wall Street Journal on the afternoon after Roe v. Wade was overturned:

Some in the pro-life movement want Congress to ban abortion nationwide. But that will strike many Americans as hypocritical after decades of Republican claims that repealing Roe would return the issue to the states.

A national ban may also be an unconstitutional intrusion on state police powers and federalism. Imposing the abortion values of Mississippi or Texas on all 50 states could prove to be as unpopular as New York or California trying to do the same for abortion rights.¹⁹

The editorial staff of the Journal could write in this way precisely because the conservative majority on the Court had held firmly to the conservative mantra that the national government had no tenable truths to put in place on the human standing of the child in the womb. For truths of that kind would justify the Congress in drawing on many of its levers of power to offer some protection to unborn children, even in the states having virtually no restrictions on abortion. To avoid that result, Justice Alito had to preserve a preternatural restraint, holding back from those simple but telling words: that the offspring in the womb has been nothing other than a human being from its first moments and never merely a part of the body of its mother. If Alito had put that anchoring point in place, it would have laid the groundwork for invoking the powers of Congress under the Fourteenth Amendment: if the unborn child was recognized unequivocally as a human being, the Fourteenth Amendment gives the Congress the power to act when a state withdraws the protections of the law from a whole class or subset of the inhabitants of the state.

That is what made Justice Breyer and his colleagues in dissent sound rather like messengers coming in, out of season, from another galaxy. The dissenters charged the Court with saying “that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”²⁰ And yet that is what Justice Alito and his colleagues had carefully avoided saying. In fact, as Alito made clear, “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”²¹ The issue of abortion would be returned to the states, and the Court would offer no directions as to how and when a legislature might choose to protect the child in the womb.

The indelicate truth that could not speak its name was that, in the conservative jurisprudence at work in this opinion, the child in the womb did not supply the ground of the constitutional argument or the object of official concern. The dissenters actually nailed this point: “the state interest in protecting fetal life,” they wrote, “plays no part in the majority’s analysis. To the contrary, the majority takes pride in not expressing a view ‘about the status of the fetus.’ ”²² The center of the problem for the conservative judges was a theory about the rightful and wrongful reach of the judges, quite apart from the moral substance of the case.

For their own part, the dissenters readily took it as a given that the only “persons” with serious interests at stake here were the women who see their lives and prospects diminished if they are deprived of the chance to order an abortion at a timely moment. What was notably erased from the scene was any recognition of that small creature in the womb as one who might have the standing of a human being, and whose injuries would also “count.”

And as the dissenters well recognized, the conservative majority in Dobbs had done nothing to refute that assumption. It had not moved to put in place the rival understanding that the child is indeed a human being with a claim to be protected by the law from its first moments. That was the case even as Justice Alito was quite crisp in pointing out that the test of “viability” made little sense. He came very close—closer than any other justice—to suggesting that the child in the womb might rightly command the protection of the law even at its earliest moment: the legitimate interests of the State in regulating abortion could tenably encompass, he said, a “respect for and preservation of prenatal life at all stages of development.” But he evidently felt constrained from saying what James Wilson said in the first days of the Constitution. As I recalled in the opening pages of this book, Wilson, one of the premier minds among the American Founders, drew us to the question: If we have natural rights, when do they begin? And his answer was: They begin as soon as we begin to be: “In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”²³

It is a measure of our current jurisprudence that none of the conservative justices has felt free to speak words of that kind. Against that I set down, in the journal First Things, what I regarded as the clear alternative, which would accord with a Natural Law perspective.²⁴ The dominant conservative view of the problem had been set forth most sharply by the man regarded as the leading conservative jurist, and for me, a beloved friend. The issue of abortion should be returned to the states, wrote Justice Scalia, so that the voters could make their own “value judgment[s]” on the matter: “The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life.… There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.”²⁵

“Value judgment” is a term that came into play with Nietzsche and Max Weber, as people began to lose confidence in speaking of “moral truths.” They would speak instead of those things that were important insofar as people “valued” them. This mode of thought has long been settled in the social sciences, and it has made its way even to conservative lawyers and judges through the language of legal positivism. And so, whether the child in the womb will be regarded as a human being will depend entirely on how most people in the states “value” the unborn child as a human being—and how strenuous they think the law should be in casting protections over that child.

Lincoln famously said, of the gravest issue of his day, that the question was “whether the black man is not or is a man.” If he is a man, then he, too must have the right to be governed only with his own consent. And he will have the same claim to have his freedom and safety protected by the law. The late Harry Jaffa remarked tellingly that the standing of the black man as a man could not be a “value judgment.” As Roger Wertheimer has reminded us, even some rather educated and decent men in the middle of the nineteenth century were inclined to regard the black slave as “some sort of demi-person,” not yet a full or “real” human being as measured by the scale of evolution.²⁶ So I tried to offer a gentle plea to my old friend on the Court: that it would be quite as unthinkable to invite people in our own day to offer their earnest “value judgments” on when that life in the womb becomes fully human.

The alternative is strikingly simple and needs no new “theory” to explain it. The Court could easily move along the lines taken by the lawyers from Texas in Roe: The laws against abortion would be binding even on those who would feel aggrieved if the right to elect that surgery were denied them, and so the task of the legislators is to show why it is “justified” to cast the protection of the laws around small beings in the womb, even if that judgment does not accord with the heartfelt convictions of others. To say such a thing—that a law finds its justification in protecting human life—should cause no tremors in the circles of conservative jurisprudence. It offers nothing that does not flow from the very rationale and character of law, nothing that would be strange or ill-fitting in a courtroom or coming from a panel of judges.

And yet speaking in this way would have made a profound difference to the way in which the matter was returned to the states. Consider what a difference it would have made if the justices had not only upheld the Mississippi law but also said something like the following:

The case has been amply made by now, in the settled findings of embryology, that the child in the womb has been human from its first moments, a distinct life, not merely a part of the mother’s body. The legislature in Mississippi is amply justified in extending the protections of the law over this small human being, residing for a long period in her mother’s womb. It falls to the states to weigh the question of when it would be justified to take this human life, with the same standards of judgment that enter into gauging the justification for the taking of any other human life. And so this matter should be returned to the domain in which citizens and their legislatures are free to deliberate again on the question of how the taking of life in abortion will be treated in their laws on homicide.

That reasoning is straightforward and simple. It would have been a notably different thing from sending the matter of regulating abortion back to the states with an opinion that drew on the words of conservative justices, present and past, and giving essentially this guidance:

The question of when human life begins, or what is to be regarded as a human life in any stage, has been a controversial matter, heatedly debated, eluding consensus, and inflaming our politics. The judges who form this Court have no clearer answer to those questions than the answers that may be supplied by the first nine names in any telephone directory. And as the locale shifts to cities and states, so too will the temper and values borne by those first nine names. We therefore send this matter back for people in the states to deliberate upon again—to make their own value judgments on when human life begins, and on when that developing life commands the obligation of the law to protect it.

Surely, these divergent approaches make the most striking contrast. The first approach would have invited the American people to deliberate seriously again on the question of what justifies the taking of an undeniably human life. The latter stylishly steers around any serious deliberation, for it is framed on the premise that there is no truth by which to gauge our judgments. As C. S. Lewis once alerted us, it makes no sense to enter any serious conversation, or any moral argument, on those terms. It would seem the most natural thing, then, to ask for that serious conversation, instead of the sounding of “value judgments,” which begin by pretending that there is no ground of truth for any answer. For the justices to speak in the most natural way, with the assumption that there are right and wrong answers out there, would have required no striking departure from the way our better jurists have always spoken. To take a line from Lincoln, “The change it contemplates would come gently as the dews of heaven, not rending or wrecking anything.”²⁷

The draft of the opinion in the Dobbs case had indicated where the Court would be moving. But the finished opinion confirmed beyond peradventure the path of argument that was chosen by the Court—and the path firmly foreclosed. The Court carefully avoided those words that would have laid the ground for the involvement of the Congress and the federal government in limiting abortion: that the offspring in the womb cannot be anything but a human being from its first moments, and not merely a part of the mother’s body. That sentence would have supplied the ground of justification for the states in casting the protections of law on the unborn child. But without that anchoring truth supplying the ground, the matter would simply be returned to the states for people to offer their “value judgments” or their “beliefs” on when the offspring in the womb becomes a human life and should come within the protections of the law.

And so Justice Alito could unfold his impressive scholarly record of the common law running back to the medieval treatise long attributed to Henry de Bracton and carrying the story from that point to laws passed in the states in the middle of the nineteenth century.²⁸ At the time the Fourteenth Amendment was ratified, as Alito noted, twenty-eight of the thirty-seven states had made abortion a crime even when it was performed before “quickening,” when the movement of the child could be felt.²⁹

But that historical record was given radically different meanings by the dissenters as well as by the members of the conservative majority. For the conservative majority the historical record fitted the conservative argument over “substantive due process”: that the judges may act to create dramatic new rights under the Due Process Clause only when there is a record of a right “long recognized in our tradition.” What the historical record established for the conservatives was summed up by Justice Alito: that “we are aware of no common law case or authority… that suggests a positive right to procure an abortion at any stage of pregnancy” [emphasis in original].³⁰ And so it was wrong for the Supreme Court to have intervened and snatched this matter from the states.

But for the defenders of abortion, and the dissenters in Dobbs, the historical record revealed something notably different: There had already been a disposition long settled on the liberal side to reduce moral arguments on abortion to “religious belief.” From that perspective the laws restricting abortion in the past could be portrayed as merely the raw imposition of outmoded religious beliefs on those who do not share them. When matters were viewed in that way, it would of course color the reading of the whole historical record. And that was precisely the line taken by the dissenters in Dobbs. For Alito, the long history of laws on abortion revealed and confirmed an understanding long settled. But the dissenters saw no moral implications to be drawn from that historical record. For them it made no difference at all that, at the time the Fourteenth Amendment was adopted, there had been an ongoing surge in the states, led by the medical profession, to firm up the laws barring abortion. For the dissenters that outpouring of legislation could be dismissed as simply a reflection of what the medical profession believed about the embryo in the womb, or how little a profession composed massively of males held any regard for the interests at stake for women in these surgeries. The dissenters asked, What rights did the framers and ratifiers of the Fourteenth Amendment have in mind? But they also pointed out that it was not the people who had ratified the Fourteenth Amendment: “Men did,” they said. “So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase ‘We the People.’ ”³¹ Seen through this lens of “gender identity,” the legal issue could be nicely separated from the substance of the bloody things going on in these surgeries. And the victims could be screened completely from the picture.

When it comes to viewing the historical record, there comes into play a version of the central question in Plato’s Euthyphro: Is something good because the gods love it, or do the gods love it because it is good? In this case, is something good because it is old, or has it become old because we have judged something about it to be enduringly good? Those laws on abortion passed widely in our states by the 1860s and 1870s—do we credit them with authority because they were soundly grounded in the evidence of embryology woven with principled reasoning? Or do we accord them the authority to bind us simply because they are old? Once again, just a few words on that head in the Dobbs opinion could have done the work: to wit, that we respect those enactments in the nineteenth century because they were based on a growing body of evidence, which makes the argument as true in our time as it was in theirs. Those were words that the conservative justices curiously held back from speaking because of a constitutional theory that commanded their reticence.

The telling confirmation on this point came from Justice Kavanaugh, in his concurrence, when he observed that many women have come to regard the choice of abortion as critical to their professional and personal lives, while on the other side, “many pro-life advocates forcefully argue that a fetus is a human life.”³² Justice Kavanaugh could not have set down those words if the conservative majority had understood the historical record to mark the recognition of an unfolding objective truth about the child in the womb.

But when the matter was detached in this way from that anchoring truth about the human entity in the womb, the situation was reduced to a contest between two groups animated by clashing beliefs, each trying to use the powers of law to impose their beliefs on other people. That was a gross reading, and yet thanks to the premises put in place by the Court, it was not an inapt reading. For if the matter is painted by the Court as a matter of the local majority coming to a “value judgment” and enacting a policy, what do we have in hand but a prettied-over, stripped-down, and unalloyed positivism? It should be no surprise that the people who care deeply about a right to abortion are not consoled or satisfied by the report that abortion will be widely available to anyone living in, or near, a blue state. And even the people in those blue states have shown a resentment not readily stilled. They were led to believe that a woman has a right to an abortion, and now they are told that she may not have it if 51 percent of the people around her are strongly unwilling to let her have it. The conservative account has been that when the matter is returned to the states, as the Court says in Dobbs, this grave moral question is put properly in the hands of a self-governing people to determine who is protected under their laws on homicide. But when detached from the moral ground that would justify those laws, the laws on abortion are naturally seen by their opponents—as they see virtually any other law that forbids their desires—as the flexing of brute power alone.

Ironically, there was one place where the dissenters did indeed discover, as James Madison said, “that veneration which time bestows on every thing.”³³ The dissenters affected to stand in misty awe of a decision whose leading virtue is that it endured for forty-nine years. But of course that was precisely the argument that had been put to the Court by the legendary John W. Davis when he sought to defend the policy of racial segregation in schools in Brown v. Board of Education. Davis raised a precedent thought to have grown venerable with age, the decision of the Court in Plessy v. Ferguson. That decision had been left largely undisturbed for fifty-eight years, and Davis argued now that “somewhere, sometime, to every principle comes a moment of repose when the decision has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.”³⁴ Justice Alito suffered not a moment of doubt that the dissenters in Dobbs would have long ago favored the overruling of this precedent on racial segregation, even though it had lasted longer than Roe v. Wade.

Justice Alito crystallized what was so novel and implausible in the theory of precedent being offered by the dissenters: “The dissent’s foundational contention,” he wrote, “is that the Court should never (or perhaps almost never) overrule an egregiously wrong constitutional precedent unless the Court can ‘poin[t] to major legal or factual changes undermining [the] decision’s original basis.’… The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions [being overruled].”³⁵ The settled view of Alito and the majority was that, like Plessy, “Roe was egregiously wrong from the start.”³⁶ Was it even imaginable that the dissenters would hold “that overruling Plessy was not justified until the country had experienced more than a half-century of state-sanctioned segregation and generations of Black school children had suffered all its effects”?³⁷ Would the dissenters not have judged that Plessy had been wrong even on the day it was handed down? Then they could hardly fault the majority for concluding in the same way that no more decades needed to pass before time would reveal what was wrong with Roe v. Wade.

And yet, in what did the wrongness of Roe lie? Nowhere in this carefully crafted opinion of the Court, both comprehensive and fine-grained, did the conservative majority pronounce any words on the wrongness of abortion. That judgment of rightness or wrongness would be left, again, to the value judgments of the people in the states. In Roe v. Wade the Court had drawn the right to abortion from the Due Process Clause of the Fourteenth Amendment, and now the conservative majority held to the argument that nothing in the Constitution or the Due Process Clause could plausibly entail this utter novelty of a right to abortion. Conservatives still clung to the notion that substantive due process was an oxymoron, that there was something immanently suspect about drawing substantive rights from that clause. And yet, Thomas Cooley, in his famous Constitutional Limitations (1871), recognized that the Due Process Clause could carry all of the deep principles bound up with a regime of law, even if the drafters of the Constitution had neglected to mention them: “When the government, through its established agencies, interferes with the title to one’s property, or his independent enjoyment of it… we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of law, and not generally by rules that pertain to forms of procedure merely.”³⁸

In other words, the taking of private property for public use without compensation would be deeply wrong in a constitutional order even if there had been no mention of such a right in the Fifth Amendment. The same sense of things was engaged when Justice George Sutherland overturned the conviction of “the Scottsboro boys” in Alabama in 1933. These were black youngsters tried for rape in a hostile setting, with less than star legal counsel, a situation so wanting in the rudiments of any fair process of judgment that Sutherland found it at odds with any plausible understanding of due process. But the deep lesson taught by Sutherland—and so widely unnoticed—was that the conviction in this case would have been wrong even if there were no Sixth Amendment to mandate the “Assistance of Counsel for… defense.”³⁹ Stuart Banner, offering his commentary on Cooley, observed that “when natural law was no longer available as a barrier to class legislation and property rights, due process took its place.”⁴⁰

In the famous Palko case of 1937,⁴¹ Justice Cardozo had offered two paths for discovering the rights embedded in the due process of law, but for some reason, one of the paths has been forgotten. The test cited most often is an appeal to history, to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” But that is actually the second of the two paths Cardozo laid out. The other, the first path, involves the consideration of whether the rights in question are “of the very essence of a scheme of ordered liberty”—and whether “a fair and enlightened system of justice would be impossible without them.”⁴² That first path involved arrangements so bound up with a regime of law that it is inconceivable that any justice could be rendered in their absence. We understand that in the very logic of a regime of law, “condemnation shall be rendered only after trial,” that no trial shall be held without a hearing of the evidence, and the hearing “must be a real one, not a sham or a pretense.” Looking back to Justice Sutherland in the Scottsboro case, Cardozo made the point that “due process” was denied where “ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel.”⁴³

In contrast, the privilege of avoiding “self-incrimination” had become long familiar, and there was no doubt, as Cardozo said, of a need “to give protection against torture, physical or mental.” But “justice… would not perish,” as he said, “if the accused were subject to a duty to respond to orderly inquiry.”⁴⁴ It might indeed be legitimate to draw adverse inferences when a man holds back evidence of a serious crime of which he has direct knowledge—as in the case offered by the late Judge Henry Friendly, when a person in custody could reveal whether the victim of a kidnapping was still alive and still in the country.

That right to avoid self-incrimination did not arise from the very logic of the regime of law. It stood rather among those things long rooted, or at least long known, in our tradition. As Cardozo pointed out, that right had long been incorporated in the law of continental Europe as well, running back to the Roman law. Still, it was a matter of tracing the historical lineage. In striking comparison, the first path invited judges to draw out the implications that spring from the very logic of law. (As in that first principle of moral and legal judgment articulated by Thomas Reid and embraced by James Wilson: that we don’t hold people blameworthy or responsible for acts they were powerless to effect.) That is an exercise in thinking back to the “first principles of justice.” It has the inescapable whiff of moral philosophy. The second path, focused on history, avoided moral judgments altogether: the judges would merely consult the record and see, for example, if this right to abortion was one known long in our tradition of law. On that cardinal point Justice Alito established quite clearly, through his long, exhaustive survey, that no right of that kind had even been hinted in the history of our law. The findings ran rather in the other direction, to condemning and punishing. That is the path of argument now long fixed and settled in conservative jurisprudence.

It was as predictable as the night following the day that Justice Alito’s opinion would trigger fierce reactions—and overreactions. The opposition sounded the alarm that the overturning of Roe would call into question a long string of precedents that had led up to the new right created in Roe. Justice Alito sought to make clear that the decision to overrule Roe would unsettle nothing in that earlier chain of newly discovered rights. Nothing here would change the judgments on the wrong of barring contraception to married couples in Griswold v. Connecticut,⁴⁵ the wrong of imposing compulsory sterilization (later and clumsily described as a “right to procreation”) in Skinner v. Oklahoma,⁴⁶ or the wrong of barring marriage across racial lines in Loving v. Virginia.⁴⁷ Alito tried to draw a clear line: “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey [v. Planned Parenthood] rely is something that both of those decisions acknowledged: Abortion destroys what those decisions call ‘potential’ life and what the law at issue in this case regards as the life of an ‘unborn human being.’ ”⁴⁸

Those earlier cases did not involve a right to do something lethal to another human being. “None of the other decisions cited by Roe and Casey involved,” as Alito said, “the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion.”⁴⁹ But then again, the Court would not confirm the key point here that a human life was being taken. The opinion declared only that abortion destroys “what those decisions call ‘potential life,’ ” or “what the law at issue [in Dobbs] regards as the life of an ‘unborn human being.’ ” The Court was merely reporting the view of the matter stated in those earlier cases—it was not presuming to pronounce its own emphatic view on whether these offspring in human wombs were in fact “unborn human beings.” The Court was studiously holding back from pronouncing a judgment on the most decisive point at all.

For their own part, the defenders of abortion did not see such a sharp dividing line. Alito had left up in the air the question of whether this right to abortion involved the killing of something that truly counted as a human being or simply of something others happened to believe is a “potential” human life. With that dividing line fading, it should have been no surprise that the people who were worried about the survival of those other rights would now demand that the Court be held to its own account of the ground on which those earlier rights stood. If the test involved rights “long rooted in our tradition,” that was certainly not the case when the Court in Griswold announced the arrival of the new constitutional right to contraception in 1965. There were still laws restricting access to contraception, especially for teenagers, on the books at the time. Nor was it the case in 1942 when the Court in Skinner insisted on a new right not to be subjected to compulsory sterilization. That was especially the case as the justices in Skinner took care to frame an argument that would not challenge Justice Holmes’s classic opinion, in Buck v. Bell, making a swashbuckling case in favor of compulsory sterilization.⁵⁰ As for interracial marriage, Lyman Trumbull of Illinois had managed the Fourteenth Amendment in its passage through the Senate, and he assured his colleagues that nothing in this new amendment would challenge the laws, in Illinois as well as Virginia, that barred marriage across racial lines.⁵¹ If we have changed our minds on that matter since then, it cannot be because of anything in the “original understanding” of the men who framed and voted for the amendment or because of anything in the text of the Constitution. If we changed, it is because the justices had drawn upon moral reasoning to explain a meaning of “equal protection” or “due process of the law” that had not been fully understood at the time the Fourteenth Amendment was adopted.

Thus the difference between Roe and the other cases simply came down to this: the justices had come to judge those other “rights” as justified and truly rightful, but no longer regarded it as unarguably rightful to kill small human beings in wombs. Once again, as ever, the matter would turn on whether one set of rights was justified while this other supposed “right” was not. And yet that was conspicuously not the argument that the Court was making here; it was in fact the argument that it was carefully working not to make.

Professor Richard Epstein made the same point, but from another direction.⁵² In sending the matter of abortion back to the States, the Court suggested that it would be giving a wide latitude to the legislatures. If any laws made on abortion were challenged, the Court would engage the so-called “rational basis” standard—that is, the law would pass muster if there were any plausible connection to a passably reasonable end. In that vein, Justice Alito continued in the path marked out by conservatives such as Rehnquist and Scalia in supporting the jurisprudence of the New Deal: he would applaud the overturning of those now-scorned precedents that took from the hands of the people the authority to pass laws mandating maximum hours for workers (Lochner v. New York)⁵³ or a minimum wage for women (Adkins v. Children’s Hospital).⁵⁴ Justice Alito was reminding lawyers and the public that the Court had indeed struck down a long line of important precedents in the past.

But as Professor Epstein pointed out, the “rational basis” standard could have sustained the legislation in Plessy v. Ferguson. As Justice Henry Billings Brown made clear in Plessy, he and his colleagues had already sustained laws that barred the separation of races on railway cars.⁵⁵ But they were willing to sustain the law in Plessy, in the same way, for they did not see how the Fourteenth Amendment, as understood by its framers, foreclosed either one of these policies. They also noted that conventions of segregation were accepted by jurists in the North as well as the South: racial segregation in the schools of Boston had been sustained by Chief Justice Shaw in Massachusetts, and more recently the separation of the races in public conveyances had been upheld by the courts in Pennsylvania, Michigan, and Illinois. The justices also knew that the framers of the Fourteenth Amendment saw no challenge in that amendment to the laws that barred interracial marriage. And nothing in the amendment had impelled them to desegregate the public schools in the District of Columbia. And so the test of “rational basis,” as it has been understood in our own time, could have worked readily to uphold that decision, so highly decried, in Plessy.⁵⁶

Professor Epstein was lifting the curtain now: if “rational basis” would have been enough to sustain those earlier laws on maximum hours and minimum wages, struck down in the New Deal, why would it not have worked quite as well to sustain the other laws that the Court had struck down in the landmark cases leading up to Roe v. Wade? In his concurrence in Griswold, Justice White thought that the statute was meant to discourage “all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital”—and he found that purpose to be “permissible and legitimate.” (Still, he didn’t think that purpose supplied a rational basis for forbidding contraceptives to married couples.)⁵⁷ But what could have been more telling here than the dissent voiced by that leading figure in New Deal jurisprudence, Justice Hugo Black, Franklin Roosevelt’s first appointment to the Supreme Court? Black professed to find the law in Connecticut on contraceptives “every bit as offensive to me as it is to my Brethren of the majority.”⁵⁸ But he saw in the Court’s decision something having the whiff of “natural law,” some claim to finding high principles of law that could challenge the laws put in place by elected legislators. And so he insisted again, as he had been insisting for almost thirty years, that “there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational.”⁵⁹

Black was offering here the ringing orthodoxy of the New Deal: legislatures should be given a wide berth, in what would later be called the “rational basis” test. But if this were to be the guiding test for the Court, Professor Epstein delivered the unwelcome news: those precedents leading to Roe are indeed open to serious challenge. The simple but hard point, made again by Epstein, is that the most decisive explanation for overturning Roe while keeping those earlier precedents unchallenged is that there is something justified in those freedoms for contraception and marriage, but emphatically not so justified in the killing of nascent lives in utero.⁶⁰ That remains, in my judgment, the most tenable ground for this critical distinction. But it was the ground, or the reasoning, that the conservative majority was steeling its collective loins not to offer.

Justice Holmes, a man ever more clever than wise, knew that he was being stylishly provocative when he published his prayer that “every word of moral significance could be banished from the law altogether.” But the power of sly provocation is that the message it conveys may be widely absorbed as a truth with little awareness of what we have come to absorb. How else might we explain Justice Kavanaugh in his concurring opinion in Dobbs: “The issue before this Court,” he wrote, “is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion.”⁶¹ The Constitution is also silent on the matter of whether people may be held responsible for acts they were powerless to commit, and whether defendants should be presumed innocent until proven guilty. Are we to suppose, then, that the Constitution is utterly empty of moral premises and suppositions, including most notably the anchoring moral premise, never mentioned in the Constitution, that human beings may rightly be ruled only with their consent in a regime structured by law? It can only be through reasoning of that kind that Justice Kavanaugh could reach his most telling line, that “the Constitution is neutral” on abortion. It is “neither pro-life nor pro-choice….[It] leaves the issue for the people and their elected representatives to resolve through the democratic process.” The issue was fully open because, as he wrote in that critical line cited earlier, “many pro-life advocates forcefully argue that a fetus is a human life”—as though there was no settled truth on this matter, long confirmed in embryology.⁶²

On this construction, a “conservative jurisprudence” on abortion must earnestly begin with the axiom that there is no truth to be known on the human standing of that child in the womb. But if so, it is a jurisprudence that accepts, as a grounding premise, a radical falsehood. Whatever else it is, it cannot be a coherent jurisprudence.

Justice Kavanaugh is a thoughtful man, at the beginning of what promises to be distinguished tenure on the Court, and so some of us hope that he may be willing take a sober second look at what he has put in place here. For he may discover that in his discourse on the neutrality of the Constitution he has stepped back into a question at the center of the classic debate between Abraham Lincoln and Stephen Douglas. Douglas insisted that the Constitution was utterly neutral or, we might say, pro-choice, on slavery. Douglas professed not to “care” whether slavery was voted up or down in the territories as long as it was done in a properly democratic way with the vote of a majority. Lincoln recognized that the framers of the Constitution had to make a prudential accommodation with slavery. But the underlying principles were still at work withholding any endorsement or approval of slavery and putting limits on the expansion of slavery. Lincoln recalled that, in one of their encounters, Douglas argued for his principle on the ground that “God made man and placed good and evil before him, allowing him to choose for himself.” Lincoln remarked that “at the time I thought this was merely playful,” but as Douglas persisted, Lincoln finally came back to him to say, “God did not place good and evil before man, telling him to make his choice. On the contrary, he did tell him there was one tree, the fruit of which he should not eat.”⁶³ God was not exactly “pro-choice” on evil. For Lincoln this was the degradation of the democratic dogma: that the regime was entirely one of “process” but no substance; that we were free to choose anything at all—say, slavery or genocide—as long as we did it in a democratic way, through the vote of a majority.⁶⁴ But would we really say that the Constitution was “neutral” on genocide or the taking of innocent life? Does a regime of law not begin by taking seriously the difference between innocence and guilt, that we visit punishment on people only after we show that they are guilty of wrongdoing and deserving of punishment? And the “unalienable right” to “life” did not mean a right to life everlasting; it meant rather the right of any ordinary person, innocent of wrongdoing, to be protected from a lawless, unjustified assault on his life. How could anyone understand those moral premises underlying this regime and think they could possibly be “neutral” or indifferent on the question of whether the Constitution would license a regime of killing small, innocent human beings? And yet the Constitution may indeed be typically read in that way by those who have tutored themselves to see the Constitution as one of the most striking artifacts and accomplishments of Positive Law, majestically detached from those moral grounds from which it sprung.

In one of his reviews, the legendary Broadway critic Brooks Atkinson remarked, “I’ve knocked everything in this show except the chorus girls’ legs, but there nature anticipated me.” I have not sought to be so severe as I have offered this close and critical reading of the governing opinion in the Dobbs case. And I would not want this critique, as sharp as it may be, to distract anyone from the massive good that the Court has done for the law—and the country—with this decision. It delivered us from a web of inversions and glib stories that people had come to absorb as they talked themselves into a skein of untruths: that medical science does not know when the child in the womb becomes a human being, that the weakness or dependence of the unborn child is a predicate for withdrawing medical care and the protection of the law, and that it is possible to remove a whole class of human beings from the circle of rights-bearing beings simply by shifting a label. In Huckleberry Finn, Huck tells Aunt Sally that his boat has been delayed because “we blowed out a cylinder-head.”

“Good gracious!” she exclaims, “anybody hurt?”

Huck says, “N’om. Killed a nigger.”

Aunt Sally, much relieved, says, “Well, it’s lucky; because sometimes real people do get hurt.” In our own day, minds may be eased by hearing that it’s only a fetus who has been killed, not any real person.

The issue of abortion has been returned to the public arena, where citizens can deliberate now, with practical effect, on just who should be covered by their laws on homicide. But it makes a profound difference whether the people in the states are invited to deliberate in a Nietzschean framework in which moral truths have been displaced by “value judgments,” with no fixed measure of “truth.” Those accomplished justices who shaped the opinion in Dobbs will not be astonished or jarred if their writing stirs some searching critiques even on the part of their friends. If I am right in those missteps I’ve seen in the argument, those steps portend serious strains of coherence, as courts and legislatures, in future cases, draw out the implications that they see springing from this opinion.

The experience with Brown v. Board of Education offers an enduring lesson here. That decision was regarded in almost all quarters as magnificently right, and yet even the professors and judges who welcomed that opinion were candid in confessing that they had trouble fixing on the ground of principle that justified the decision. As I have sought to show in these pages, that original confusion begat in turn other serious confusions, which gave us an enduring scheme of “racial preferences” quite sharply at odds with the principle that explains the wrong of racial discrimination. In short, we have learned that “getting the right outcome” may not be enough.

Still, those accomplished justices in the majority may have “wrought better than they knew.” And indeed, they may have wrought better than I know. For the reasons unfolded in these pages, I fear that the decision in Dobbs will beget a rocky future with many upsetting, and perhaps demoralizing, surprises. On the other hand, it may produce results wondrous beyond anything that any of us has expected. When Lincoln sprung the Emancipation Proclamation, it was instantly derided for having all of the moral force of a “bill of lading.”⁶⁵ For Lincoln did not have the authority to divest, from their rights of property, all owners of slaves in the land. He could invoke his executive power only as a war measure: he could emancipate only those slaves held in the states at war with the federal government, the slaves whose labor was freeing up whites for service on the battlefield against the United States. And yet, even with all of its legal constraints, the proclamation bore a meaning that was soon and widely grasped. It was an anti-slavery manifesto, meant to impart an anti-slavery dynamic. In the same way, the decision in Dobbs, as excruciatingly circumscribed as it is, will be seen as animated by an affirmation of the sacred value of life.

Samuel Alito, a gifted and wise man, seasoned in the art and statecraft of judging, and steeled with the nerve to judge, has often shown the deft hand of a teacher: In opening and framing the problem, he set down clues that act as hints. He said enough to lure his readers into reasoning on their own the rest of the way to the conclusion. He has, for the first time, set down in the official pages of the Court some of the telling markers along the way as a cluster of cells turns itself into the child who can be seen on a sonogram. He has also put in place the reasoning that shows why the sliding scale of “viability” offers no principled ground for marking any point at which a non–human being turns into a human being who comes within the protection of the law. He has supplied, in short, the rudiments of a principled argument on abortion, and sending them aloft in the world, they may awaken again the powers to think anew, even in the blue states.

Even beyond that, we may be taken by surprise by another turn in “the cunning of history”: The laws in the pro-life states will surely be challenged, as they seek to protect the nascent being in the womb at its earliest moments. It will fall to conservative judges to explain why those laws may be rightly sustained even as they protect the embryonic life at five or six weeks, or even earlier. And on that question, there is no more accessible strand of reasoning to grasp than Justice Alito’s telling line in Dobbs: “If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’… why isn’t that interest ‘equally compelling before viability’?”⁶⁶ In other words, as the lawyers for Texas sought to explain in Roe v. Wade, that child in the womb has never been anything other than human at every stage of its existence. Of course, some judges may respond with the simple vulgarity that the majority in Dobbs was willing to settle in with: that there is no truth on this matter for judges to declare, and so we simply respect the laws that the people in the states have enacted for themselves, almost regardless of what they are. Which is to say: the law is the decree of those with the power to make it. But other judges may take seriously the obligation to gauge the reasoning that is offered to justify the imposition of these laws on people who disagree. And if the judges reach back to Justice Alito as they seek to explain their judgments, we will have come full circle: even conservative judges may find it natural to speak now the words that the dissenters in Roe were never moved to speak, in explaining why it was justified for the laws to protect small humans in wombs in Texas.

One way or another, we will see the results play out, and we will be able to judge. But judging implies that there are indeed standards of judgment, giving us right or wrong answers, or what some of us call the truth. If judging were merely a matter of subjective feelings, with no testing truths, Thomas Reid’s rejoinder would apply again: a judge would be ill-named—“he ought to be called a feeler.”⁶⁷ But if there are truths to be known, they will come to us in the manner, as Aristotle said, most distinctively natural for human beings. They will come in the course of giving reasons. And those reasons will lead us back then, with Thomas Reid, to the anchoring axioms in the “laws of reason.”⁶⁸ Which is to say we will be back, as we will ever be, with the Natural Law.