The 2022 Supreme Court decision which overturned Roe and granted individual states the right to legislate on abortion won the support of the Catholic bishops and a large majority of white evangelical leaders, but has also generated widespread opposition. In their joint dissent, Justices Breyer, Sotomayor and Kagan argued that the majority “decimated women’s reproductive freedom,” and “undermined a woman’s personal autonomy.” This decision opened up the possibility of restrictive state laws banning all abortions from conception and even prosecuting women who seek abortions. The dissenters worry that the Court will now overturn other established rights, such as same sex marriage. Furthermore, they accuse the majority of undermining the traditional image of the Supreme Court as a stable institution, since a simple change in the membership of the Court overturned a long-established right.
Echoing the Court minority and typifying many women’s organizations, The League of Women Voters issued a statement claiming that Dobbs deprives women of their “bodily autonomy,” which means they are “no longer equal individuals in our democracy.” Furthermore, it will exacerbate societal inequities, disproportionately impacting women of color and low-income communities. The League concluded its statement: “We will use our anger to fight in the legislatures, the courts and the streets.”
In the November 2022 issue of Commonweal, Cathleen Kaveny, who teaches law and theology at Boston College, published a response to Dobbs that criticizes both the majority and minority opinions while proposing a third way forward. She points out that the 1973 Roe decision produced “a new raging political debate” about abortion, which has gotten more polarized over the years and today divides the country along partisan lines. For example, in 2022 70% of Republicans identify as pro-life as do only 10% of Democrats. Kaveny sees Dobbs as a “radical decision,” which will exacerbate the culture wars with conservative states restricting abortion and progressive states becoming “sanctuaries” for pregnant women. At the same time, Kaveny criticizes the Court minority for not recognizing the failure of Roe to end the national acrimonious debate over abortion.
Searching for a viable alternative, Professor Kaveny lauds Chief Justice Roberts for upholding the Mississippi law banning almost all abortions after 15 weeks as “not unduly burdensome,” but refusing to join the majority in overturning Roe. She sees Roberts’ position as a “possible blueprint” for a workable compromise which would allow abortions before 15 weeks but ban them after that.
Recent polls suggest Americans would support this type of compromise. For example, substantial majorities agree abortion should be legal in at least some or all circumstances but should not be allowed after viability, unless the health of the mother is at stake. At this time, it is hard to imagine state legislatures actually working in a bi-partisan way to pass legislation that reflects this public consensus. Nevertheless, the Christian virtue of hope encourages us to avoid a paralyzing pessimism and to continue our efforts to find common ground, trusting that God will not let any of our good endeavors be lost or wasted.
What aspect of the dissent is most significant to me?