How Dobbs Might Shape the Future of Conservatism in Unexpected Ways

The pro-life movement included constitutionalists, religious activists, advocates of states’ rights. What happens now that Roe has been overturned?

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In overturning Roe v. Wade, the Supreme Court delivered the right’s biggest single victory ever, and it may spell the end of the conservative movement as we’ve known it.

It was Ronald Reagan who popularized the notion that the conservative movement rested on a fusionist “three-legged stool.” In theory, the three legs were free market economics, national defense, and social conservatism. In practice, free market economics meant low taxes and pro-business policies. National defense meant anti-communism and, briefly, the war on terror. Social conservatism covered a lot of territory but the enduring core was opposition to Roe and abortion.

Like anti-communism, “pro-life” was a big tent all its own, including constitutionalists, religious activists, advocates of states’ rights, et al. While nearly everyone invoked the “sanctity of life,” as a policy matter, many argued merely for overturning Roe either to fix a jurisprudential error or to send the issue back to the states, to let the democratic process find a social compromise on abortion.

For other abortion opponents, however, overturning Roe was a first step on the road to enshrining a “culture of life” that protected the unborn from conception onward.

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  1. Avatar photo
    Khal Spencer

    "...It’s going to be raining chips for quite a while...." both for this and for the Bruen ruling. Although NYS's Sullivan Act as practiced in the Five Boroughs could hardly have made a difference in its violent crime rate given that guns can move from state to state and county to county like a greased and frightened pig through a crowd, legislatures in True Blue states are galvanizing to "get angry and do something" most of which will be intemperate.

    I can see both of these decisions as being full employment acts for the legal profession and Jonah, as you said in your Do the Right Thing piece, having a lot of unintended consequences. And chips will be falling like rain for some time. Of course in New Mexico, we can use all the rain we can get, but please hold the chips.

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  2. Feeder of many cats

    Good question. There is a clear divide between the populists and the authoritarians, but the problem is that the two major parties are authoritarian right now, with the Progressives largely authoritarian-marxist, and the conservatives largely authoritarian-religious. Both marxism and religion have their own identities beyond authoritarianism, but it is the anti-democratic impulse to inflict unpopular views on the voting public that we are dealing with right now rolling into the November elections. One way or another, one set of authoritarians are going to be disappointed with the outcome. If we are very VERY lucky, the populists that the Davos set are trying to destroy, will all get together and pull the country back to the center rather than dealing with the destructive pendulum swings, back and forth, left and right. We’ll have to see.

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  3. Davechauncey

    Jonah is wrong about one thing. Florida has a “right to privacy” from 1980 in its Constitution to which the GOP first needs a decision by the Supreme Court of Florida on whether still falls within the right. Most legal scholars do not before a complete ban is allowed in Florida without a constitutional amendment. That’s why DeSantis has not sought any additional restrictions. FL GOP will be more incremental and find the limits of the law. FL is also a much more moderate state on abortion than it’s southern neighbors in polls.

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  4. Bob H

    "If the court had banned abortion outright based on the “right to life” found in the 14th Amendment, the once-united opponents of Roe would be divided."

    The more likely channel for those who wish to find a pro-life provision in the text of the Constitution has been the Equal Protection clause, the claim being that the failure of a state to protect the unborn under its homicide laws is a denial to unborn "persons" of equal protection by those laws.

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      Khal Spencer

      First you have to legally define a "person" as existing and falling under the 14A from the moment of conception. Adding more cans of worms to this mess is likely to happen, but not likely to result in clarity.

      Of course in an equal protection argument, men are not required to get or remain pregnant.

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      1. Bob H

        I'm not saying I agree with the pro-life Equal Protection argument, merely that it is the more usual 14th amendment argument employed by pro-lifers. (I do happen to believe it is a more constitutionally defensible argument than that which finds a right to abortion lurking somewhere in the 14th Amendment, but I still think it is problematic if one adopts a "public-meaning" originalist approach to the Constitution.)



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  5. Jaybrown

    Absolutely right, Jonah. Your formulation correctly places the pieces on the board, but the rules of the game have not been determined yet.

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    CynthiaW

    Good discussion, Jonah.

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    Bill Dyer

    What almost no one yet appreciates about Dobbs is that its main impact on the country will not be its overruling of Roe/Casey, but its majority precedent skewering substantive due process. 𝗩𝗶𝗲𝘄𝗲𝗱 𝗮𝘁 𝗲𝘃𝗲𝗻 𝗮 𝘀𝗹𝗶𝗴𝗵𝘁 𝗮𝗻𝗱 𝗱𝗶𝘀𝗽𝗮𝘀𝘀𝗶𝗼𝗻𝗮𝘁𝗲 𝗱𝗶𝘀𝘁𝗮𝗻𝗰𝗲, 𝗗𝗼𝗯𝗯𝘀 𝗶𝘀 𝘁𝗵𝗲 𝗦𝗖𝗢𝗧𝗨𝗦 𝗿𝗲-𝗲𝗺𝗽𝗼𝘄𝗲𝗿𝗶𝗻𝗴 𝘁𝗵𝗲 𝗹𝗲𝗴𝗶𝘀𝗹𝗮𝘁𝗶𝘃𝗲 𝗯𝗿𝗮𝗻𝗰𝗵𝗲𝘀 𝗼𝗳 𝗼𝘂𝗿 𝗻𝗮𝘁𝗶𝗼𝗻𝗮𝗹 𝗮𝗻𝗱 𝘀𝘁𝗮𝘁𝗲 𝗴𝗼𝘃𝗲𝗿𝗻𝗺𝗲𝗻𝘁𝘀, 𝗮𝘁 𝘁𝗵𝗲 𝗲𝘅𝗽𝗲𝗻𝘀𝗲 𝗼𝗳 𝘁𝗵𝗲 𝗳𝗲𝗱𝗲𝗿𝗮𝗹 𝗰𝗼𝘂𝗿𝘁𝘀' 𝗼𝘄𝗻 𝗽𝗼𝘄𝗲𝗿.

    Substantive due process is how the judiciary has seized unintended and illegitimate power in our system of checks and balances, and the impact of THAT has extended far, far beyond just the abortion question. Substantive due process is how the Supreme Court has tried to functionally amend the Constitution while skipping Article V thereof regarding the amendments process (in which the judiciary was deliberately given no part).

    Dobbs' disavowal of the use of substantive due process, at least going forward, is in an Opinion of the Court — a majority opinion, every part of which has been joined in by at least five Justices. This stake in the undead heart of substantive due process, in other words, is ITSELF now protected by stare decisis.

    And from the viewpoint of the entire national polity (as opposed to those individuals making reproductive choices), that's a VASTLY bigger deal than any ruling, in any conceivable direction, about abortion.

    Indeed, that, ladies and gentlemen, friends and neighbors, is as remarkable a development in the course of American history as George Washington declining to be King, or President for Life, and instead, like Cincinnatus, going home while still first in war, first in peace, and first in the hearts of his countrymen.

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    1. Pohl

      I hope it’s disavowal is as safely enshrined as you think it is. I don’t think things like casuistry have had their last gasp, though, so I expect a clever workaround when the Court inevitably changes its majority judicial philosophy.

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        Bill Dyer

        Lemme put it this way: The substantive due process zombie is going to survive, under names like Obergefell in particular, because of the overwhelmingly powerful reliance interest that has played out from that particular precedent; but substantive due process has lost its power to infect and spawn others of its particular kind.

        There will be other sorts of constitutional interpretations in the future that will be hung, or attempted to be hung anyway, from other constitutional pegs. We'll continue to see creative new legal theories, including constitutional theories, that purport to be based on our old favorites like the Fourteenth Amendment's Equal Protection Clause; or maybe there will be a revival of the Privileges & Immunities Clause; or the con law faculties of the 10 most elite law schools may come up with a way to derive a constitutional right to next-year's-passion from the Third Amendment.

        But I think this particular undead constitutional abomination is well and truly staked, short of a constitutional amendment explicitly empowering the SCOTUS to make up new parts of the Constitution at will. (Because that's what they were doing in all those prior substantive due process cases.)

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        1. Pohl

          I figured you’d bring up Obergefell. I see you’ve also added mention of its reliance interest, over which I’ve disagreed with you in the past. That decision itself may successfully carry on un-dead, but you give a nice precis of the means with which future Courts will judge and again “find” rights in the Constitution. Why aren’t amendments written more clearly? Argh.

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    DougCLE

    Thanks, Jonah, and I think you may be right, in the long run. Not the short-term, obviously, because the real abortion fight is just getting started - all the SC did is place the fight back where it should've been all along - but in the long-term, for sure.

    A large part of my cultural conservatism centers on abortion. I am perfectly at ease with gay marriage, for example, and my positions on other cultural issues could at best be called "mixed". When the abortion issue eventually drops away, what reason do I have to still make common cause with hardcore cultural conservatives? Many of them don't share what I would consider big-C Conservative principles like fiscal responsibility and a strong foreign policy. Many of them run directly counter to my preferences on, say, immigration.

    I don't think this is going to cause the right to fall apart, exactly. But it could lead to at least some splintering, and more of an a la carte approach to candidates. Once our abortion policy - whatever it turns out to be - is fairly solid, and candidates are no longer running on it, I could see me and some others pulling the lever for moderate D's a lot more often. Especially if we're talking about policies that could help bring the remaining abortions closer to 0%. (Yeah, I know: "fiscal responsibility". But also "fat, healthy babies" and "loud, fearless children". You gotta find that balance.)

    Of course, I'm only speaking from my own experience, and I'm perfectly aware that there are plenty of people who punch the "R" holes all the way down the ballot without reading the names. This may have no effect at all. But if I were the leaders of the GOP, I wouldn't leave that up to chance - I'd be looking hard at how to build the next coalition. Maybe it will be a more hopeful one than what developed in the twisted landscape created by Roe.

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  9. Eklees

    Severely restricting abortion will just result in more children in foster care and more low income women in states that do not have a track record of helping these groups. Does anyone honestly think states like MS, TX or AL will pony up more money to reduce child poverty or help single mothers when these same states wouldn't expand Medicaid for healthcare?

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      Dusty

      Texas expanded postpartum Medicaid from 2 to 6 months and ponied up $170 million to help single mothers.

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  10. GK

    I never really read the comment sections on the Dispatch before the Roe decision. Since then I have, and I’ve been immensely disappointed with the logical fallacies, mischaracterizations, and rhetorical laziness. For some reason I expected better from Dispatch readers. I should have known this would be an internet cesspool like every other site.

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    1. Mathew A

      "I’ve been immensely disappointed with the logical fallacies, mischaracterizations, and rhetorical laziness"

      Well the commenters are all human...

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      Pat Riot

      I know, right? Sometimes people come here to comment just because something else pissed them off and they need a place to vent and they flame everybody in sight. You have to take the good with the bad on the Internet...

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