The majority opinion in Dobbs v. Jackson Women’s Health Organization is an immoral decision and will lead some states to force citizens into immoral actions. Others have analyzed the legal reasoning of the Supreme Court’s decision. In this post, I will consider its moral dimensions and devastating consequences.
In the first sentence of the majority opinion Justice Samuel Alito wrote, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” This first sentence encapsulates Alito’s argument: the moral problem is unsolvable so the Supreme Court must overturn Roe v. Wade, bow out of the discussion, and return the problem to the states. Alito’s fundamental premise is disingenuous but handily sets up a profoundly immoral conclusion.
Alito divides American opinion into three groups. Significantly, the first group includes those who “believe fervently that a human person comes into being at conception and that abortion ends an innocent life.” This is the Roman Catholic and Evangelical position. Actually, it represents only the position of the Roman Catholic hierarchy. Polls have consistently shown that a majority of Catholics disagree with the hierarchy on this point.
A second group “feel[s] just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality.” One might suppose that this represents a feminist position, but no major group claims this position on behalf of feminism. The claim is stated as an absolute (“any regulation”) and framed in terms of control. Concern with control aligns with a patriarchal perspective, which is surely the Court majority’s point of view. By contrast, feminist perspectives typically frame the issue in terms of choice—a woman’s agency is a fundamental right that deserves legal protection. Alito’s second group conveniently caricatures the feminist perspective, making it easy to condemn and dismiss.
A “third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.” According to the polls, this group represents the majority of Americans, which Alito does not acknowledge, nor does he cite any of the many scientific studies of Americans’ attitudes about abortion. Alito’s description of group three makes it seem so varied and unfocused that it cannot be dealt with. Alito’s summary of the three groups insinuates that they represent equal thirds of the population, which is not the case.
The first paragraph in the decision declares that “abortion presents a profound moral issue” without resolution. But why is abortion such a profound moral issue? In Alito’s judgment:
The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Alito places “fetal life” in scare quotes, which are “used to express especially skepticism or derision concerning the use of the enclosed word or phrase” (Merriam-Webster Online Dictionary). For Alito, the fetus is actually an "unborn human being." Alito’s statement sides with the Roman Catholic/evangelical position and, without argument, states this viewpoint as a fact.
In fact, the equation of fetal life with unborn human being is not self-evident but is based on religious, denominational beliefs. The Court’s decision offers no legal or biological evidence for this equation. Alito relies on the Mississippi law under review to prove that fetal life is an unborn human being, something that law makes no effort to do. By this sleight of hand, Alito passes over the most controversial aspect of his claim, the point at which human life begins. While going out of his way to claim that the Court’s majority decision is neutral on abortion, Alito stacks the deck in the favor of the radical Mississippi law and the Catholic/evangelical position.
Aristotle, Augustine of Hippo, and Thomas Aquinas would have been astonished that anyone might think a fertilized egg was an “unborn human being.” For these thinkers the fetus is unformed, with a vegetable or animal soul. The human soul only comes later, often identified with quickening. The human soul is what gives form to an unformed fetus, making it a formed fetus. After all, in Aristotelian terms, the soul is a form. The Jewish and Islamic traditions follow a similar route, all ultimately dependent on Aristotle. The notion that a human soul comes at fertilization is an invention of the modern Roman Catholic Church with no basis in its tradition. The strategy of the Catholic right to life committee departed from centuries of tradition to personalize and humanize the fetus, erasing women’s rights.
In biological terms, life is a continuum. The path from the union of two gametes to a zygote to a newborn baby involves a growing complexity minute by minute, hour by hour, and day by day. Complexity compounds after birth. A baby develops self-consciousness, often taken as a defining element of a human being, sometime between fifteen and twenty-four months post-partum. The difference between a zygote and a newborn is obvious—they are not the same thing, even though there is a biological continuity. But making distinctions and decisions is the task of ethics and even courts. Traditional societies have long made such distinctions, as seen in Aristotle, Augustine, and Thomas Aquinas.
A fertilized egg is a potential human being, but only potentially. An acorn is potentially an oak tree, but it is not an oak tree. A pile of lumber is potentially a house, but it is not a house. At what point a fetus should be called a human being is debatable and involves choosing an admittedly arbitrary point. But the fact that it is arbitrary does not mean it is not real, much less that conception is the logical point for designating a fetus a human being.
The decision that a zygote is an unborn, fully human person is clearly a religious decision. It has no other basis. It demands understanding the moment of conception as an act by which God infuses a spiritual soul into a material body. In this model, a divinely created soul makes the zygote fully human. This viewpoint derives from a mythological narrative of human creation, as well as a dualist metaphysics. Both are philosophically dubious notions. The constitutionally protected separation of church and state and freedom of religion reject the notion that an extreme belief of a religious minority should ground a constitutional decision.
There is one other way to establish the definition of a human being: by fiat. In this case, the State of Mississippi declared by legislative fiat that a fetus is a human being, a raw use of political power. The majority decision of the Supreme Court also decided by fiat that such a raw exercise of power is justified. Their declaration imposes the religious views of a minority on the majority.
Without evidence and even contrary to evidence, Christian faith has prepared believers for centuries to believe things that are not true. Thus, to many believers it “makes sense” that life begins at conception, even though such a belief is illogical and counterfactual.
For Alito abortion is an intractable moral issue because his position, the absolutist position of the Roman Catholic Church and evangelical Christians, offers no room for compromise. If a fetus is an unborn human being, ending its life is murder. Yet the 70 percent of Americans who support Roe v. Wade, groups two and three in Alito’s schema, offer plenty of room for compromise (see Pew Research Center).
Abortion is no more profound or difficult an issue than many moral issues we face as individuals or a society. Making moral decisions always involves balancing conflicting interests. That is what ethics is all about.
An absolutist posture short circuits the reasoning process. A simple example makes the point. The fifth commandment reads, “Thou shall not kill,” (Exodus 20:13 KJV) a simple declarative statement that offers no exceptions. Yet the Hebrew holy writings contain a great deal of killing, without debate about the meaning of the fifth commandment. Even g-d demands the annihilation of Israel’s enemies in the conquest of Canaan.
But as for the towns of these peoples that the Lord your God is giving you as an inheritance, you must not let anything that breathes remain alive. Indeed, you shall annihilate them—the Hittites and the Amorites, the Canaanites and the Perizzites, the Hivites and the Jebusites—just as the Lord your God has commanded. (Deuteronomy 20:16–7 NRSV)
G-d’s command comes perilously close to the modern definition of genocide. In saying so, I do not single out the Hebrew Bible; the Book of Revelation, too, contains many bloody scenes. But this example indicates that absolutist moral standards do not work because exceptions always exist. The devil is in the details.
In traditional societies a set of rules determines whether an action is good or bad. The technical term for rule-based morality is deontology. It means that one has a duty (deon in Greek) to follow a lawmaker’s rules. Rules are not open to question because they come from on high. One’s duty is to obey the rules. Rules define morality. The Ten Commandments are a deontological set of rules given from on high to Moses. From a deontological perspective, the duty of Israel is to obey those commandments.
Most of us negotiate our everyday lives by a set of rules we learned from our family or community. These form our conscience, what I call “my mother’s voice in my head.” But don’t ask who made the rules. The answer is God, or the ruler, father or “Wait till your father gets home!”—always some patriarchal figure and they are all the same.
Traditionally morality was embedded in the family, tribe, or state, not in religion. In Greek and Roman religion, the purpose of religion was to keep the gods acting favorably for the devotee. The philosopher worried about what constituted a good, moral life—not the gods.
The religion of Israel shifted this paradigm for all succeeding western culture. The g-d of Israel was interested in the most intimate details of the life of g-d’s people. Israel had a Torah, not a collection of mythologies. Both Christianity and Islam adopted this position, so that these three religions espouse a deontological morality.
The rule-based, deontological position of the Supreme Court’s majority opinion, the Catholic church, and Christian evangelicals begins with a rule that abortion is wrong. Significantly, their position only considers the fate of the fetus. The rule may occasionally entertain exceptions, like incest or danger to the life of the mother, but the rule remains. The rule derives from a patriarchal perspective in which females and fetuses are owned by males. Often in the religious debate, God substitutes for the male and is construed as male. God has given the fetus life. God owns the soul. Humans may not play God or take away what God has given.
Ultimately, the Court’s position protects male ownership of females. The affected woman’s situation goes unexamined in the Dobbs decision. She does not decide what to do with her body but must submit to the state. Her duty (deon) is to bear a child. The Court’s majority decision declares that the state owns a woman’s body. Once pregnant, a woman becomes a slave of the state.
Yet when one considers the female situation from a deontological position, the case begins to fall apart. Our duty is to obey the law, but the law must meet certain criteria. A law is not permitted to require sacrifice or heroic behavior. Humans can choose sacrifice or heroic behavior. This is the definition of virtue and, significantly, it requires a free human choice. The law may not demand sacrifice or heroic behavior as duty. Thus, on deontological grounds, it is immoral to require by law that a woman sacrifice her body or heroically put her life at risk through pregnancy. Dobbs v. Jackson is an immoral decision requiring immoral action.
Although he operated from within a deontological system, Plato challenged the foundations of deontology in his dialogue, Euthyphro. “[T]he holy has been acknowledged by us to be loved of God because it is holy, not to be holy because it is loved [by God].” In Plato’s view, the gods figure out what is good and holy in the same way humans do. A law is not made good by the gods’ proclamation. A law must be good in itself.
The Enlightenment changed everything by denying the deontological system. Instead, it understood individuals as free, autonomous, moral agents with rights that protect individuals from the state and religion. By contrast, in a deontological system a rule is a given and an individual’s duty is to obey. Only a king has rights. An individual does not have rights, but only duty. Deontological ethics and rights ethics are incompatible.
By nature, rights are both emergent and corrosive. Rights are emergent because they open up upon exploration and, in the process, they inevitably expand. Rights are corrosive because they eat away at the existing powers, privileges, and the status quo.
The American and French revolutions fired the opening salvos in the establishment of “rights of man [sic].” To protect individual rights, monarchy had to be overthrown and the church and state had to be separated. The American colonies declared political independence from the king, and the French revolutionaries killed the king. The struggle to preserve human rights and against monarchy in its modern guise of authoritarianism continues to this day.
Conservatism in the tradition of Edmund Burke and Joseph de Maistre was born as a reaction to the American and French revolutions. As such, it always resists expanding rights. The originalism of the conservative justices of the Supreme Court denies the expanding rights of the American Constitution. It allows only those rights originally expressed, thus missing the point of rights theory. Like its religious cousin fundamentalism, originalism pretends to uphold what the Constitution meant originally, hence the name, but its posture is ahistorical and avoids historical analysis. Dobbs v. Jackson arises from this reactionary context. It assumes that deontology is right and expanding rights are wrong. In the American revolutionary period, the signers of the majority opinion would have aligned with the royalists, not the revolutionaries.
The first crusade resulting from the Enlightenment notion of expanding rights was the worldwide movement to abolish slavery and it was long fought. With a few important exceptions, churches were not among the crusade’s leaders.
Slavery was the unmentionable topic during the constitutional convention (1787) because slavery’s abolition would have risked the possibility of union. As a result, the Constitution never mentions slavery—America’s original sin. Beginning in the 1830s, early feminists often led the American Abolitionist movement. Freedom for the enslaved and equal rights for women were tied together.
Only the civil war ended slavery. But the civil war did not solve the problem of race. In its immediate aftermath, white southerners set up a Jim Crow regime that substituted for slavery after Reconstruction. In the 1950s that regime came under attack. In 1954 the Supreme Court ruled in Brown v. Board of Education that segregated schools were unconstitutional. As we shall see, that was the precipitating event that eventually led to Dodds v. Jackson. The response throughout the southern United States was immediate and forceful. Whites withdrew en masse from the public schools and set up private Christian academies.
The resistance to school integration sparked the beginning of the modern American conservative movement. William F. Buckley, one of its founders, wrote an op-ed in his journal, The New Republic, entitled “Why the South Must Prevail” (1957), an elegant but full-throated defense of white supremacy. Stopping the Supreme Court’s expansive view of rights became a defining element of conservativism. Under Chief Justice John Roberts, the conservative majority has systematically dismantled the Voting Rights Act. Alito’s opinion in Dobbs v. Jackson continues this trajectory.
As we saw in examining the role of evangelical Christians in the anti-abortion movement, the threatened loss of tax-exempt status for their Christian academies motivated evangelical Christians to join the anti-abortion movement as allies of the Catholic pro-life movement.
Understanding the rights of man to also include the rights of women was the second major expansion of human rights. Mary Wollstonecraft in A Vindication of the Rights of Women (1794) produced the first sustained argument for equal rights for women. She argued that a woman is a free, independent agent with decision-making capacity. Neither she nor her fetus is the property of any male or the state.
The quick move from the “rights of man” to the crusade that the enslaved were entitled to human rights and freedom, and that women were entitled to equal rights demonstrates the expansive notion of rights and its corrosive power on the status quo. In seventeen hundred years it had not occurred to Christians that slavery was wrong. After all, the Bible approves of slavery. It was the notion of human rights that was decisive.
Abortion was so little mentioned until the second half of the twentieth century because for most of history the role of women was silenced, and until then abortion was unsafe. Exposure of the newborn was safer and almost certainly more common. In the ancient Hippocratic oath, the prohibition of abortion concerned the risk of a doctor prescribing lethal drugs. Human rights ethics and safe medical procedures for abortion shifted the emphasis to the woman, making a compelling case for a woman’s right to choose.
Medical advances in the 1960s finally made it possible for a woman to decide whether to get pregnant or to safely end a pregnancy. This was the first time women has such freedom and power. The influence and effect of this technology must be considered when assessing the ethics of abortion. With the advent of safe birth control, women could control when they got pregnant. For the first time in history, abortions were medically safe. Both these changes made it possible for the woman to be the decision maker. Ethically her decisions and choices could take priority. A woman had the means to act as a free subject regarding her fertility. Any other’s interest became secondary. Dobbs v. Jackson denies that agency. Not only does it step backward into patriarchy, but by denying a female her due agency, it subjects her will to the state, an immoral act and a curtailment of her full humanity.
I leave to legal scholars the postmortem on Dobbs v. Jackson. But from an ethical point of view, Roe v. Wade stands on firmer ground, despite the fact that the majority opinion in Dobbs declared that decision “egregiously wrong.” Roe not only allows room for compromise, it fixes moral responsibility in the right place, with each woman as a free, moral agent in conversation with other interests. Dobbs erases her agency and focuses exclusively on a fetus’s rights, which, like abortion, are not enumerated in the Constitution.
By making no argument as to why a fertilized egg is a full human being, the Dobbs v. Jackson decision in effect reverses Plato’s dictum quoted above: “[T]he holy has been acknowledged by us to be loved of God because it is holy, not to be holy because it is loved [by God].” Alito says, it is right because it is the law. The majority establishes the law because it has the votes, not because it is logical, legal, or ethical. This is perilously close to Louis XIV’s “L'état C'Est à Moi.”
In fifty years of argumentation, the pro-life, anti-abortion position has produced no credible argument to support its claim that human life begins at fertilization. A public relations slogan, Pro Life, is the best it has come up with. Its problem is that there is no credible argument—not biological, legal, historical, or even theological. Its argument is based on sentiment: the innocence of the unborn life, a powerful emotional appeal. Casting it as the ultimate civil rights battle was a stroke of genius, even if completely disingenuous.
By focusing on the fetus and ignoring the female, the patriarchal gaze misses the deontological argument in favor of abortion. Since one’s duty requires obeying the law, the law must be able to be obeyed in a reasonable fashion. Requiring a woman to bear a child against her will requires sacrifice and when her health is in danger, it requires heroic behavior. Such is an immoral requirement. The anti-abortion movement is not interested in life or ethics, but the maintenance of patriarchy.
Both on the basis of modern rights ethics and traditional deontological ethics, Dobbs v. Jackson is an immoral decision that imposes an extreme religious belief of a minority on the majority As originalists, they have failed to understand that the framers of the Constitution were Enlightenment thinkers. While proclaiming a right to life, the decision violates traditional and modern ethical norms and strips women of their fundamental human identity as moral actors.
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