Dobbs and Dignity

by | Jun 30, 2022

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About Rachel Wechsler

Dr Rachel J Wechsler is an incoming Associate Professor at the University of Missouri School of Law.

Image description: A board with the sign ‘Bans Off Our Bodies”.  

On Friday, the U.S. Supreme Court ruled that there is no constitutional right to abortion in Dobbs v Jackson Women’s Health Organization, overruling nearly fifty years of legal precedent and dealing a serious blow to women’s human dignity.

The principle of human dignity lies at the heart of human rights law. Foundational human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, recognise the dignity of human beings as a fundamental value and set out rights aimed at promoting it. The precise meaning of dignity is contested, but one commonly advanced understanding of the concept is the capacity to make “self-defining and self-governing choices.” The U.S. Supreme Court has invoked this conception of dignity in past decisions upholding Roe v Wade, the 1973 case that established a constitutional right to abortion until foetal viability. In Thornburgh v American College of Obstetricians and Gynecologists, the Court recognised that a woman’s decision regarding whether to terminate a pregnancy is “basic to [her] individual dignity and autonomy”. Though partially overruling Thornburgh by permitting additional state regulation of abortion so long as it does not impose an undue burden upon a woman’s right to terminate a pre-viability pregnancy, the plurality in Planned Parenthood of Southeastern Pennsylvania v Casey reiterated that a woman’s ability to choose whether to continue her pregnancy is “central to personal dignity and autonomy”. The pairing of “autonomy” with “dignity” underscores the Court’s (former) understanding that women are capable of self-determination and interfering with this capacity will significantly and unjustifiably compromise their dignity. In permitting states to ban abortion, Dobbs undermines women’s dignity and autonomy by preventing women from controlling the course of their own reproductive lives.

The Dobbs decision also implicates another common conception of dignity: the intrinsic worth of each individual human being. According to the Universal Declaration of Human Rights and other core human rights instruments, all humans possess equal dignity, which must be respected. However, as a consequence of Dobbs, many states are criminalising abortion, which leads to the treatment of pregnant individuals as less worthy and valuable than others. For example, where state abortion laws only permit the procedure when it is necessary to save the mother’s life, physicians are likely to delay performing it until the patient’s health has significantly declined to reduce the risk that they will face criminal liability. In the words of one clinician and medical school professor, “[h]ow imminent must death be” for a physician to legally perform an abortion? Another physician and professor expressed concern that state laws will require doctors to “watch somebody get sicker and sicker and sicker until some point – and where is that point? – where it’s OK to intervene and [they] won’t be exposed to criminal liability”. She added, “[l]aws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful”. This will inevitably lead to greater suffering and worse outcomes for many women, as is evident from the experiences of other jurisdictions with current or past abortion bans (see, for example, the tragic case of Savita Halappanavar in Ireland, who died from septicaemia after being denied an abortion during a miscarriage). The diminished priority placed on pregnant women’s health and lives when they lack abortion rights compromises their dignity because it treats them as possessing less worth than other human beings.

In eliminating the constitutional right to abortion, Dobbs undermines women’s dignity by interfering with their capacity to make major, self-defining decisions about their reproductive lives and by diminishing the value placed on their health and well-being. The dignity of other groups is also under threat from Dobbs because the reasoning used to overturn Roe—essentially that abortion is not mentioned in the Constitution and abortion rights are not deeply rooted in U.S. history and tradition—can also be applied to other Supreme Court decisions, including those establishing rights to same-sex marriage, consensual same-sex intimacy, and contraception (Justice Thomas explicitly makes this assertion in his concurring opinion). We must stem and reverse the assault on human rights and dignity if we wish to hold on to any of the progress we have made over the past two-and-a-half centuries towards becoming a more equal, just, and democratic society.

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