Pro-Choice and Pro-Dobbs

By Joonyoung Heo ‘25

Absurd though it may seem, I find myself in favor of “pro-choice” rhetoric and, at the same time, in favor of Dobbs v. Jackson Women’s Health Organization.

Popular dogma says that is quite impossible. It cannot be that an individual who supports the right to abortion should also support the landmark Supreme Court decision that overturned Roe v. Wade, which granted such a right under the Constitution. I consider it perfectly logical.

With so much controversy at hand, I would hate to be misconstrued. To be explicit, I believe in the right to abortion––that a woman should be able to control her own body, at least until a certain point in pregnancy. I believe in several other arguments: that an unwilling mother might birth a child who will be neglected and maltreated, that legalizing abortion is the best way to make it safe and affordable for women of lower socioeconomic groups, and so on. 

Those are all fair arguments. But they are rendered equally irrelevant to this article by the fact that the Supreme Court is a judicial body.

Roe v. Wade, it follows, is not “pro-choice.” It was a ruling from the Court, and any such ruling is neither a political statement nor a moral endorsement. The justices were certainly not advancing that the benefits of legalizing abortion outweigh the costs. It was, as all cases under the Court are meant to be, a matter-of-fact interpretation of the American Constitution. When the justices in 1973 issued a 7-2 decision in Roe, they merely found that the document grants to the American people the right to abortion. Morality or practicality, or any other factor for which pro-choice advocates clamor today, were not concerned in the slightest.

To the same extent, Dobbs v. Jackson Women’s Health Organization is not “pro-life.” The ultimate 6-3 decision does not amount to a ruling that the state should control a woman’s body, and it seems to me an injustice to impulsively attribute such a notion to the Court. They ruled only that the Constitution does not safeguard the right to abortion. 

Justice Brett Kavanaugh put it well in his concurring opinion: “The issue before this Court . . . is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion.”

Having made this distinction, supporting Dobbs is not a question of pro-choice or pro-life; rather, it comes down to a dispassionate appraisal of the Court’s dispassionate interpretation. Personally, I find the majority decision in Dobbs convincing.

Roe was rooted in the Due Process Clause of the Fourteenth Amendment that guarantees a right to “privacy.” The Court concluded that this right fundamentally protects the more specific right to abortion. To balance competing state interests of preserving a woman’s health and “protecting prenatal life,” the Court created a pregnancy trimester system to determine the point in time at which the “viability” of potential life outweighs the mother’s autonomy.

Conversely, in the Court’s opinion in Dobbs, Justice Samuel Alito writes that Roe was “egregiously wrong” and “exceptionally weak.” The particular consideration of potential life, he argues, excludes the right to abortion from the broader right to privacy guaranteed by the Due Process Clause. That a human life is invariably tied to abortion, in other words, makes it a special case. Nowhere else in the Constitution does it outline this right, either. 

The Court recognizes that the Fourteenth Amendment guarantees “some rights that are not mentioned in the Constitution,” of course. But these rights must be “deeply rooted in [our] history and tradition,” a principle established in Washington v. Glucksberg, and Alito finds no historical precedent in a search that stretches all the way to 13th-century English doctrine. 

Notably, Alito was not using the absence of historical precedent to justify the Court’s decision in Dobbs, as many pro-choice advocates claimed the moment his opinion was leaked. He was merely proving that the right to abortion is not “deeply rooted” in history. It’s a very common practice in Court rulings; Justice Ruth Bader Ginsburg, to give one recent example, cited the Magna Carta in the Court’s main opinion in Timbs v. Indiana. And since the right to abortion was “entirely unnkown in American law” until the late 20th century, Alito concludes, it cannot be an unenuermated right implicit in the Constitution.

The Court committed a further offense in Roe by creating a pregnancy trimester system. No such “veritable code” is even alluded to in the Constitution. The kind of policymaking that might produce a trimester system out of thin air belongs to the legislative branch, not our courts of law. The government is divided into three branches for a reason.

Finding that the Constitution neither grants nor proscribes the right to abortion, then, the Court’s 6-3 ruling takes the middle ground. The power to decide the legality of abortion is now returned to the state level, or “to the people and their elected representatives.”

Of course, any individual–– assuming he or she has read Roe and Dobbs–– can disagree with the Court’s majority ruling. It is called an opinion, after all, and three justices (Breyer, Kagan, Sotomayor) did write in dissent. I happen to side with the ruling. But whichever way you lean, a personal verdict on both Roe and Dobbs can exist only as an interpretation of the Constitution.

It is certainly true that justices are men and women with experiences and interests of their own. To see them as entirely disinterested and concerned exclusively with the law is a step too far. Indeed, as a historical example, the Supreme Court frequently abused the Fourteenth Amendment’s Due Process Clause to protect big corporations at the turn of the 20th century. Justice Samuel Miller himself spoke of the Court in 1875 as “the advocates for forty years of railroad companies, and all forms of associated capital.”

Yet the natural predispositions of our kind do not give the public an easy way out. We are not empowered by the mere possibility of bias to denigrate a Court ruling as the work of political puppets or the self-serving elite. The sitting justices may be Democrat or Republican, pro-choice or pro-life, but our obligation to presume the rational integrity of their decision endures. Perhaps, if we have tried and failed to read it as a reasonable interpretation of the Constitution, if we are left confounded by its absurdity––then we might look to those other considerations that may have clouded the Court’s judgment. But in the case of Dobbs, I do believe that both sides of the debate can appreciate the quality of its legal argument.

The news today delivers report after report of arrests and prosecutions as the law enforces a streak of anti-abortion regulations in many states. I suspect they will build in quantity. Yet if something must be blamed, it is the legislative body–– the system that does take into account morality and practicality and popularity and all the rest. The Supreme Court has no business dealing with these factors. Its purview rests entirely on the Constitution, and the justices have the cardinal duty of ensuring that it remains so, whatever the ramifications.

As Alito writes, the Court “cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” The legitimacy of Roe and Dobbs is thus far removed from the rift that divides pro-choice and pro-life.