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

Paragraph 3 of 3

Sentence 1 of 4

One claim in this sentence, and it’s a doozy:

“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”

This could be true depending on the reading of “is not based on,” but “prenatal life” and its synonyms play a significant role in one crucial part of the opinion that is reiterated throughout the document. Let’s do a quick survey:

From page 5:

“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’.”

From page 32:

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being’.”

From page 37:

“[I]t is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called ‘potential life’.”

Again beginning on page 37:

“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.’ The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘potential life,’ but an abortion has that effect.

From page 49:

“What remained was a handful of cases having something to do with marriage, Loving, 388 U.S. 1 (right to marry a person of a different race), or procreation, Skinner, 316 U.S. 535 (right not to be sterilized); Griswold, 381 U.S. 479 (right of married persons to obtain contraceptives); Eisenstadt, 405 U.S. 438 (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life’.”

From page 71:

“Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life’.”

I wanted to make sure I only cited passages in which the majority appeals to the fetus or the status of the fetus, as opposed to the states’ interest in protecting the fetus, because while the latter easily fits into the claim of this sentence the former probably doesn’t. My point here isn’t that the majority doesn’t argue for states’ interests, but that there are points in this decision where the majority’s argument rests not on states’ interests, but on the status of the fetus itself. And that is in direct contradiction to this claim.

But because I am but a lowly layman, I have to acknowledge that my reading of the situation could be flawed or incomplete, so I will withhold my determination until I’ve been able to give it more thought and to read more about it.

This is undetermined:

• “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”