Dobbs was Historic and Necessary, but it was Incomplete

By: John Moor

The Dobbs Supreme Court decision was historic because it was one of the rare times that the Supreme Court reversed an earlier decision.  When the court makes a decision that is later reversed, it is usually because they were trying to provide what some people want instead of following the original intent of the law.  The nation’s founders did not intend for the judicial branch to give new rights or services that even a majority of the citizens wanted.  The separation of powers allocates this to the legislative branch.  

Dobbs was necessary to correct the error in Roe which is similar to the error made in the infamous Dredd Scott case.  In Dredd Scott, the court determined that Black people were property and therefore could be treated in any way the owners felt was appropriate (which included ending their life).  In Roe, the court stated “In short, the unborn have never been recognized in the law as persons in the whole sense” which placed babies in the womb in the same category as property and by doing so declared that they could be terminated if the mother desired.  The Dredd Scott decision was reversed by the 14^th Amendment to the Constitution which states “nor shall any State deprive any person of life, liberty, or property, without due process of law;”.  The Dobbs decision partially reversed Roe by determining that the Constitution does not include a right to an abortion but, unlike the resolution of Dredd Scott, the court did not define when the right to life would apply to the life in question.  In this vacuum, some states are treating pre-born babies as property and some treat them as persons who are worth protecting. 

This current conflict between the states is similar to pre-Civil War America where the location of a Black person determined if they were property or a protected human being.  Ironically, it is the southern states that are now upholding the principle that was fought over during the Civil War.  The southern states that had fought during the Civil War to treat Black people as property, now fight to defend the right to life of the youngest and most vulnerable members of the human race.  While some states that had fought for the right to life and liberty of all people, now declare preborn children as personal property which can be disposed of for any reason.  The problem with this view is that it leaves no logical basis for protecting pre-born babies that the parents desperately want.  The law attempts to do this by providing some limited criminal and civil penalties, but by providing protection for babies based solely on whether the mother wants them, the law is treating them as property with no inherent value.

The issue left open by Dobbs is defining the criteria for applying the constitutional right to life.  There is a consensus on when human life ends based on the Uniform Determination of Death Act which states that death occurs when circulatory and respiratory functions irreversibly stop or

all functions of the entire brain, including the brain stem, irreversibly stop.  However, there is no consensus on when to start protecting human life.  In Roe, the court speaks of an increasing interest in human life as the pregnancy progresses, but the court did not find any point during the pregnancy when the value of that human life exceeds the merit of the mother’s wellbeing.  This is a significant shortcoming in the application of the most fundamental of human rights which is guaranteed in the constitution.  The most liberal laws that enable abortion allow the procedure for the entire 9 months of pregnancy to protect the “health” of the pregnant woman.  But since this is not defined by the courts, it can be interpreted by a pro-abortion doctor to be anything from morning sickness to anxiety.  This is a very broad and subjective criteria that ignores any consideration of the ethical conflict between the right to life of an individual and another person’s well-being.

Roe, Casey, and Dobbs have shown that the courts are unwilling to take an objective and scientific look at when the constitutional right to life should be applied to human beings.  So now it is up to the people to take an objective look at the development of the fetus and determine when some immutable physical characteristic appears that would define when the baby should be protected from harm and inform their legislators how life should be protected.  It will be hard to do this without including a prejudicial view of how other people are affected, but the definition of human life requires such restraint.

In determining the criteria that define when human life should be protected, certain characteristics should be excluded that are already protected by existing law.  The time of birth, as used in Roe, is an incorrect characteristic because it is merely a change in the location of the baby, which is similar to the inequality that existed in pre-Civil War America.  Other characteristics that cannot be used to define when human life should be protected include the age of the fetus, their health, their mental capacity, or their appearance since prejudicial treatment based on these is unlawful.  The courts continue to mention a point of viability, but that is not a valid characteristic for defining when human life should be protected because it changes based on the state of technology and the health of the fetus.  No human being should lose their right to life based on their own health or their ability to survive without help.

Valid criteria for when human life should be protected should be immutable and not dependent on external entities or influences.  This is the basis for the laws that protect equality.  The first criterion is that the entity has a unique human DNA to ensure that the fetus is a separate person from the mother.  This is supported by a survey of 5000 biologists from around the world with  96% of them saying that human life begins at fertilization.  Additional valid criteria could include a heartbeat or brain activity which are currently used to determine when a human life ends. 

It is inconceivable that the most fundamental of human rights does not have a common standard for its application that is based on facts, logic, and ethics.  It is now incumbent on all state legislatures to define when human life begins based on the inherent characteristics of humans and pass abortion laws that protect equality for all humans regardless of their age or development.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.