As always, you can find the Dobbs v. Jackson decision here.

Paragraph 1 of 3

Sentence 3 of 5

This is one of the more notorious sentences in this decision:

“Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life’.”

The claims:

• Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.”
• “[T]he dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life’.”
• “[T]he dissent’s analogy [. . .] reveals [something] about the dissent’s views on the protection of what Roe called ‘potential life’.”

I’ll set aside that first claim for the moment, because even at first glance it needs a lot of attention. I’ll come back to it after tangling with the other two. Here’s the second claim:

• “[T]he dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life’.”

The main point of this claim is that “the dissent’s analogy is objectionable.” and that is going to require support, which I hope to see in the next few sentences. Until then, this claim is undetermined. As for the third claim:

• “[T]he dissent’s analogy [. . .] reveals [something] about the dissent’s views on the protection of what Roe called ‘potential life’.”

The majority’s concern for the dissent’s “views on the protection of what Roe called ‘potential life’” (not the states’ interest in protecting “potential life”) is again at odds with their insistence that their decision does not rely on the status of the fetus. Beyond that, this claim is in the same position as the last: waiting for support.

Now for the first claim:

• Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.”

One reason this sentence seems vague is that the use of “this” and “those.” We have to reach back to the previous sentences for both the subject and the object, so let’s take a quick look at the three of them in sequence:

“The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life’.”

Here’s how I’d reconstruct it for clarity:

• Perhaps [“the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life”] is designed to stoke unfounded fear that our decision will imperil” “the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage).”

The word “designed” stands out as implying some sinister intent. It might just be, as I suggested earlier, that the dissent is responding to a decision in which the majority minimized its own focus on the status of the fetus. In any case, the “perhaps” renders the whole thing speculation, so there’s no urgent need to confirm this claim. Since it’s speculation, I wonder if it even makes sense to include it in the decision.

Another phrase that catches my attention is “unfounded fear.” The reason that this sentence has attracted so much attention is the way in which Justice Thomas’s concurrence undermines it. Here’s Thomas on page 3 of his concurrence:

“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ Ramos v. Louisiana, 590 U.S. ___, ___ (2020) (Thomas, J., concurring in judgment) (slip op., at 7), we have a duty to ‘correct the error’ established in those precedents, Gamble v. United States, 587 U.S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment. Amdt. 14, §1; see McDonald, 561 U. S., at 806 (opinion of Thomas, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854.

It’s hard to maintain the claim that the fear is “unfounded” when one of the justices departs from the majority specifically to indicate that he’s inclined to fulfill those fears. And it doesn’t inspire confidence that one of the reasons the Dobbs majority feels compelled to consider this case is the number of states that have requested it based on the beliefs of some of the people in those states. That’s an awfully low bar, it seems to me.

So after all of that fun, we have three undetermined claims:

• Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.”
• “[T]he dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life’.”
• “[T]he dissent’s analogy [. . .] reveals [something] about the dissent’s views on the protection of what Roe called ‘potential life’.”