Dobbs v. Jackson Women’s Health Organization

Justice Byron White and Abortion

US Supreme Court 1976

Responding to Richard Doerflinger’s critique of “Waiting for Dobbs,” Prof. Arkes asserts that conservative justices could successfully outlaw most abortions by returning to Justice White’s standard: only abort to save the mother’s life. At the same time, however, White did the pro-life cause a lasting disservice by focusing not on the rights of unborn babies but on the abuse of “raw judicial power.”

Waiting for Dobbs

640px United States Supreme Court Building at night

Hadley Arkes recalls that day, back in 1986, when Justice Byron White, one of the original dissenters in Roe v. Wade, startled Justice John Paul Stevens by suggesting that he too could accept Roe and a “right to abortion” in some form. Stevens seemed genuinely baffled. What White was offering was an understanding that would keep Roe v. Wade as a shell, while the substance was removed. Professor Arkes tries to reconstruct that argument here as an anticipation of what might happen if the Supreme Court seeks to take “the low door under the whole” in the Dobbs case—sustaining the law in Mississippi while affecting not to overrule Roe v. Wade.

The Dobbs Case and the Strains of Prudence

Wikimedia Phil Roeder scaled

Prof. Arkes analyzes the arguments at play in the upcoming Dobbs case, and explains that while there are potential outfielders and stockbrokers, there is no such thing as a “potential” human being.

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The James Wilson Institute’s Mission is to restore to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights.
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