Divergent Opinions in Dobbs Provide a Way Forward for State Family Policy 

Abortion law ought to be understood in the wider context of family policy, given how it intersects with the present and future familial circumstances of women, men, and any children conceived. It is no surprise, then, that the Supreme Court’s recent decision in the landmark abortion case, Dobbs v. Jackson Women’s Health Organization, touches upon family matters, even though the Court did not set out to make family policy, but rather to determine whether the federal Constitution contains any provision that might be interpreted to guarantee a right to legal abortion. Of course, neither the Dobbs court nor courts generally have jurisdiction to make policy decisions about how to strengthen or assist families. State legislatures do, with their jurisdiction to make laws about their citizens’ “health, safety, and welfare” (a body of powers together known as a state’s “police powers,” which every state has). 

Dobbs returned to the states the ability to legislate about abortion, given its holding that the federal Constitution contains no basis for a right to abortion. And despite their sharp differences, the majority and dissenting opinions provide states important suggestions about how to take family life—pregnancy, childbearing, and childrearing—into account when making laws affecting abortion post-Dobbs. Together, Dobbs’ divergent opinions reveal that abortion is never a “single issue” about a right to terminate a pregnancy; rather, abortion law affects the lives of children and their mothers and fathers. Thus, states should attend to the sets of concerns expressed in both sides of the opinion, however imperfectly and incompletely expressed by the Justices who wrote them. The well-being of families, and the health of the national debate over abortion, depend upon giving each side their due. 

In order to flesh this out, I will summarize the most significant points of the Supreme Court’s majority and dissenting opinions in Dobbs. Then I will draw out for special attention what each side is saying—implicitly—about the family in the 21st century United States and consider how state laws might take into consideration some of the most pressing concerns of both sides.

The Dobbs majority dwells upon the general national legal consensus from the time of the American colonies to Roe v. Wade (1973), in favor of protecting developing human life before birth in the vast majority of circumstances. This is due to Supreme Court precedent that only allows the Court to conclude that the “liberty” clause of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) only guarantees a particular right when that right can be said to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Ordinarily, this means there is a long record of state laws and practices recognizing and protecting the claimed right, together constituting a sort of national consensus. But the Court determined—based upon a detailed review of abortion laws in the U.S. beginning during the colonial era, covering the period surrounding the enactment of the 14th Amendment (1868) and continuing thereafter until just a few years before Roe v. Wade—that that the opposite record characterized abortion law. American colonies and later states banned abortion beginning when medical science could determine that human life existed in the mother’s womb; earlier this referred to “quickening,” the child’s movement in the womb, and later this was scientifically understood to encompass the period beginning at fertilization. The Court noted that by 1868, three-quarters of the states made abortion a crime at all stages of pregnancy” and that the “remaining States would soon follow.” Likewise respecting the territories that became the last 13 states, these forbade abortion during all stages of pregnancy between 1850 and 1919.  By the end of the 1950s, in all but four states and the District of Columbia, abortion was prohibited except in cases where the mother’s life was at stake.

The Court suggests that it constitutes rational family policy to protect the lives of, and promote respect for, children prior to birth, including—when applicable—by mitigating their pain. It makes the same judgment about protecting maternal health and safety. 

As a result, the Court concluded, Roe v. Wade and Planned Parenthood v. Casey were “egregiously” wrong to conclude that the 14th Amendment’s “liberty” clause could be interpreted to include protection of abortion. Instead, and according to the structure of federalism, it concluded that because the federal Constitution does not arrogate abortion law to itself, states must be left free to legislate about it. 

This is the point at which the majority opinion suggests a few points of family policy under the umbrella of a state pursuing “rational” means to serve “legitimate state interests,” the constitutional standard for evaluating state laws that do not touch upon a federal constitutionally protected “liberty interest.” The Court’s policy observations are quite basic. States, it writes, can use their abortion laws to pursue rational interests in advancing “respect for and preservation of prenatal life at all stages of development,” the “protection of maternal health and safety,” “the mitigation of fetal pain,” and the “prevention of discrimination on the basis of race, sex, or disability.” In other words, the Court suggests that it constitutes rational family policy to protect the lives of, and promote respect for, children prior to birth, including, when applicable, by mitigating their pain. It makes the same judgment about protecting maternal health and safety, and about preventing discrimination against children based upon their race, sex, or disability. 

The majority opinion further notes other family policies concerning parenting that states and the private sector might also consider in response to the dissent’s worries that pregnancy and childbearing weigh very negatively on many women. These concern: attitudes about the pregnancy of unmarried women; laws banning discrimination on the basis of pregnancy; laws granting leave for pregnancy; insurance coverage and government assistance for care associated with pregnancy; “safe haven” laws allowing women to drop off babies anonymously at designated locations; and adoption laws. 

With regard to women’s preferences concerning abortion, the majority highlighted women’s power to affect the “legislative process” by “influencing public opinion, lobbying legislators, voting, and running for office.” It noted women’s electoral and political power as well, reporting that 

[i]t is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots. 

The majority noted the dissent’s discussion of the negative effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women, but criticized it for what it called its “most striking feature”: the “absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life” and an unwillingness to interpret the Constitution to allow states to “regard the destruction” of what Roe and Casey called “potential life” as a matter of any significance.”

The majority is correct about the absence of any consideration of a state’s possible interest in protecting children’s lives before birth in the dissenting opinion. Instead, Justices Breyer, Kagan, and Sotomayor’s opinion focuses at length upon the hardships of women’s being pregnant, giving birth, childrearing, and generally losing the ability to guarantee (by means of abortion) the ability to avoid bearing and rearing a child when they so desire. The dissent points to the unreliability of contraception, and the potential that a woman’s circumstances might change even during a pregnancy, such that she wishes to seek an abortion of a previously-wanted child. The dissent further argues that a right to legal abortion generally undergirds women’s sense of authority, dignity, and efficacy regarding her own life, and that the right to abortion foments women’s equality generally with respect to economic and social outcomes. 

Dobbs’ divergent opinions reveal that abortion is never a “single issue” about a right to terminate a pregnancy; rather, abortion law affects the lives of children and their mothers and fathers.

Together, the Court’s divergent set of opinions illustrate how state abortion laws closely intersect with a large range of family matters, to wit: respect for the lives of vulnerable members of the family, the degree of welcome offered to children no matter their sex, race, or level of abilities, the safety of pregnancy and childbirth, the ability of mothers to participate robustly and with a sense of support and equanimity in education and employment, and to be accepted as equals in all of these spheres. 

The majority opinion suggests that states who choose to greatly restrict abortion can credibly work to satisfy all of these family needs. Unlike the dissent, the majority opinion portrays women as efficacious actors in their own destiny, and the law’s movement to accommodate mothering. The dissent, on the other hand, stresses women’s aloneness, their vulnerability and oppression, particularly respecting pregnancy and parenting, and argues that abortion laws that protect human life before birth cannot co-exist with a legal regime that values women’s equality, dignity, and opportunity. The most visible pro-choice activists appear to conclude similarly. 

However, within pro-life advocacy, there is a strong strain insisting that respect for women and children go hand-in-hand. Groups adopting this perspective advance legislative agendas seeking to realize family policies implied by both the majority and dissenting opinions in Dobbs, involving programs and practices touching upon welfare, healthcare, family leave, work flexibility, and care for low-income women and children. They argue that women are regularly pressured to live as if their natural ability to bear children, and their desire to rear them, are disabilities impairing their access to myriad economic and employment opportunities. They insist that the American economy, especially employers, acknowledge that pregnancy and childbearing are facts of most women’s lives, and that women need substantial support throughout. Today, instead, employers regularly hold women to the standard of corporations’ “ideal male worker,” and encourage women to act as if they have no childcare responsibilities. 

Law, policy, and culture in the U.S.—particularly economic policies and corporate practices—are a long way from embracing a family-building-and-strengthening mindset that might satisfy both the majority and the dissent’s concerns. Especially post-Dobbs, a significant subset of American corporations, in particular, continue to treat abortion as a “single issue” that only concerns a woman’s right to seek it legally. 

But post-Dobbs, states and employers will have options. They might choose to focus only upon the protection of unborn human life or only upon women’s interest in choosing abortion whenever they desire. However, because abortion is never intrinsically a “single issue” but instead nests with a broad gamut of family matters, such one-sidedness would only continue to shortchange or even completely ignore all of the lives involved in pregnancy and family life. It would continue to leave women alone with their “autonomy” in matters of pregnancy and parenting, or champion equal human rights for children without attending to the related needs of mothers and families. To avoid this outcome, and to bring a degree of peace to what is currently a massive national struggle, laws and policies concerning abortion ought to take as their starting point the ability of families to form and thrive, beginning during pregnancy and continuing thereafter. 

Helen Alvaré is the Robert A. Levy Professor of Law & Liberty and the Associate Academic Dean at the Antonin Scalia Law School of George Mason University.