Almost half a century ago the Roe v Wade decision created a right to abortion, preventing lawmakers in the United States from passing laws to protect the unborn child before viability. The Supreme Court has now overturned this decision. Dobbs v Jackson has not made abortion illegal. Rather, it has returned to states the power to legislate on abortion – whether to promote abortion access or to restrict it. From a natural law perspective this decision corrects an historic error – the supposed Constitutional right to abortion – but it does not disclose the true character of abortion.

Abortion, in the central case, aims to ensure that a pregnancy is ended without the birth of a living child. This is why, in the United Kingdom, the Royal College of Obstetricians and Gynaecologists recommends that abortion after 22 weeks is preceded by feticide: “to ensure that there is no risk of a live birth”. Abortion to prevent the birth of an unwanted child is sometimes termed “elective abortion”. This is morally distinct from contraception, which aims to prevent a child from being conceived, as elective abortion aims to prevent the already-living child from being born alive.

Distinct from elective abortions are emergency procedures which aim to remove the child from the body of the mother in order to prevent serious harm to the mother’s life or health. The classic example of this is surgery for ectopic pregnancy. The foreseen death of the child in such cases is an unintended and unwanted side-effect. Such procedures are sometimes called “therapeutic abortion” but, from an ethical perspective, it is better not to use the word “abortion” for these operations. It is the intention in the action that defines the moral character of an action, and the intentions in elective abortion and in emergency obstetric procedures are utterly different.

If the unborn child is recognised as a human being, then the state has a clear duty to do what it can to prevent elective abortion. It is true that the law does not prohibit every wrongful action. St Thomas Aquinas is clear that the law should not prohibit an act if the prohibition would be ineffective or even be counterproductive or if it would be disproportionate to the wrong it seeks to address. On the other hand, as Pope Saint John Paul II made clear, protecting the lives of innocent civilians is the first duty of the state and is the most basic reason for restrictions on liberty. Roe v Wade was an unjust decision because it prevented states from protecting unborn children.

In the Roe v Wade decision, judges appealed to broad principles of liberty and privacy which they argued were implied by the United States Constitution. This leads to two possible objections. It could be objected that, as there is nothing explicit in the Constitution about abortion, laws against abortion cannot be contrary to the Constitution. More subtly, it could be argued that the further we move from the words of the text, the stronger the need to show clear precedent and the greater the need for humility on the part of judges. This objection embodies an “originalist” approach to interpreting the Constitution.

Alternatively, someone might agree that there are rights implied by the Constitution that were not appreciated by the founding fathers, but at the same time deny that access to abortion is such a right. Someone might argue that the judges in Roe v Wade erred not because they appealed to broad rights and principles but because they failed to give due weight to other rights and principles and especially the right to life. It may be noted that the European Court of Human Rights accepts that the right to privacy is relevant to abortion law, but also gives weight to the state’s interest in protecting unborn human life. That Court has avoided either affirming or denying that the unborn child is the subject of rights, but has upheld restrictive laws that countries have passed to protect the unborn.

The main thrust of the majority in Dobbs v Jackson is originalist. Roe v Wade is criticised as an “exercise of raw judicial power”. However, as the dissenting judges point out, if the main problem with Roe is departing from the text, then the issue is not special to abortion and many other decisions might likewise be overturned. Justice Clarence Thomas openly embraces this conclusion in his concurrence. However, Justice Brett Kavanaugh argues that this decision is about abortion and only about abortion and that abortion is different from intimate sexual relations, contraception or marriage precisely because of the presence of the unborn child. It is because of the presence of the unborn life that there was no valid precedent for Roe v Wade. Here Kavanaugh is surely closer to the truth than Thomas. The primary problem with Roe v Wade was not how far it departed from the text of the Constitution but how far it departed from natural justice. It prevented states from acting on their recognition that the unborn child is a natural person with an inherent right to life.

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