The issue ignored in Dobbs and the overturning of Roe

Justice Blackmun’s majority opinion in Roe, which denied personhood and the constitutional right to life to human fetuses, went unchallenged—and remains unaddressed in Dobbs.

(Image: kishivan |

A vital issue was conspicuously ignored when, on June 24, 2022, the United States Supreme Court, by its ruling in Dobbs v. Jackson Women’s Health Organization, overturned its half-century-old decision in Roe v. Wade. What is remarkable is that the issue that the Court ignored in Dobbs was the issue that the Court in Roe had regarded as the central controlling constitutional issue in its opinion—whether a living, developing human fetus is a “person” under the Constitution.

Justice Blackmun framed the issue (as well as its controlling centrality) quite clearly in his majority opinion in Roe:

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. [Emphasis added.]

Justice Blackmun then went on to list every usage of the word “person” in the Constitution, and drew the conclusion that none of those usages (and these are Justice Blackmun’s words) “indicates, with any assurance, that it has any possible pre-natal application.” [Emphasis added.]

Some may see, in that hedging expression “with any assurance” an element of doubt, raising an “honest doubt” moral principle—a basic moral insight that if there is an honest doubt as to whether a given human being possesses “personhood,” any truly humane and civilized society would and should resolve that doubt in favor of “personhood” rather than against it. Justice Blackmun, however, took the positivist position that, if the personhood of the fetus is not specifically mentioned in the Constitution, it does not exist. An honest-doubt mode of thought, based loosely (or perhaps precisely) on the age-old Golden Rule of doing unto others as you would have them do unto you, might suggest a more inclusive understanding of constitutional personhood.

That crucial part of Justice Blackmun’s majority opinion in Roe, denying personhood and the constitutional right to life to human fetuses, went unchallenged—indeed, un-commented-upon—in Justice Alito’s opinion for the majority in Dobbs. Justice Alito’s only reference to personhood in the context of the human fetus came in his critique of Roe’s suggestion that “viability” (i.e., the ability of the human fetus to survive outside her mother’s womb) was the point at which the government acquires an interest in the human fetus’s “potential” life. He did not discuss personhood in the context of the human fetus’s right to life.

Personhood in Roe and Dred Scott

It is in the context of the denial of personhood to living, developing, pre-natal babies that a telling analogy has been drawn between Justice Blackmun’s denial of constitutional personhood to prenatal human beings in his Roe v. Wade opinion in 1973 and Chief Justice Taney’s denial of constitutional personhood to black human beings, slave or free, in his well-known and infamous Dred Scott v. Sandford opinion in 1856.

The question of personhood arose in a procedural context in the Dred Scott case. The technical question involved the diversity-of-citizenship jurisdiction in the federal court system and the issue for decision was whether Dred Scott, a slave suing for his freedom, could be considered a citizen of Missouri so as to have the legal capacity to sue his “owner” Sandford, a citizen of New York, in federal court. On that issue, Chief Justice Taney actually held that black people could not be considered “citizens” at all (not even free black people) because they could not be considered “people” within the meaning of that word “people” in the Constitution. These are Chief Justice Taney’s words:

[N]either the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument [i.e., the Constitution].

At the very least, the “honest doubt” sensitivity referred to above should have suggested itself to Chief Justice Taney, and—so the criticism goes—he should have resolved his “honest doubt” in favor of personhood (or “people-hood”) for blacks. Cowed, perhaps, by the “political-correctness” intimidation of his day, Chief Justice Taney ruled that not even free black people could be considered “people” within the meaning of the Constitution.

Interestingly, there have only been these two times in the entire history of the Supreme Court when the Court has denied personhood to any classes of human beings—the Dred Scott decision in 1856 and the Roe v. Wade decision in 1973. The Dred Scott decision was indefensibly wrong-headed and dishonest. But what about Justice Blackmun’s denial of personhood to living, developing human babies in their mothers’ wombs?

Personhood in the Womb

There is strong evidence in the basic norms of the Judeo-Christian Biblical culture that originally informed the founding of our American nation, and indeed in the basic norms that found their way into the founding document of the United States of America, the Declaration of Independence, that the living, developing human being in her mother’s womb was accorded personhood.

In the Judeo-Christian Biblical culture embedded in the prophetic writings of Jeremiah and David, we learn that we are all intimately known by from the instant of our conceptions:

The word of the Lord came to me, saying, “Before I formed you in the womb I knew you.” (Jer 1:4-5)

For You created my inmost being; You knit me together in my mother’s womb. — (Psa 139:14)

Our American culture, as embodied in its founding Declaration of Independence in 1776 (even before its independence from Great Britain was physically accomplished), conceived itself on that same self-evident premise, that we are all known by God from the moment of our creation:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Caesar and God

Today, it has become clear that our American culture has long since abandoned that fundamental premise of endowment by our Creator. More than a century ago, Pope Leo XIII prophetically foresaw, in his encyclical Immortale Dei, that abandonment and its cultural implications for the world at large:

“There is no power but from God.” [citing Romans 13:1] . . . [Yet t]he authority of God is passed over in silence, just as if there were no God; or as if He cared nothing for human society; or as if men, in their individual capacity or bound together in social relations, owed nothing to God; or as if there could be a government of which the whole origin and power and authority did not reside in God Himself. Thus, as is evident, a state becomes nothing but a multitude, which is its own master and ruler.

It must be admitted that we have, even with developments within our Judeo-Christian tradition, ways of rationalizing our remarkably odd, dismissive attitude towards God. We have raised the doctrine of “Separation of Church and State” (a phrase that appears nowhere in the text of our Constitution) to the status of a civil Dogma.

Yet, in truth, didn’t Jesus Himself suggest the propriety of a separation between the things of the law and the things of God with His injunction, in Matthew 22:21, to render unto Caesar the things that are Caesar’s and to God the things that are God’s? Law belongs to Caesar; morality belongs to God. Most Americans, if asked, would unhesitatingly accept that notion as both descriptive and normative of our present mode of social thought—indeed dogmatically so.

If we pause a moment to think about it, however, we easily realize that the notion of the separation of law and morality, the one belonging to government (Caesar), the other to God, is deliberately, consciously, and routinely violated every day in practice. We look to our legislatures, state and federal, to enact moral laws and to avoid enacting immoral laws, and we look to our courts, state and federal, to interpret laws consistently with decent moral principles. Law making and law interpreting, however, are the business of Caesar, and morality is the business of God. The undeniable fact is that we let our lawmakers and our law interpreters routinely tamper with the business of God. Do we let God tamper with the business of our law makers or law interpreters? The dilemma, scarcely faced and seldom recognized in our society, is that we accept a separation between the things of Caesar and the things of God—between law and morality—and yet we operate under a system that authorizes, indeed requires, Caesar to tamper with the business of God—morality—and forbids God to tamper with the business of Caesar.

Our society’s current operative solution to that dilemma is to make both law and morality the business of Caesar and to wipe God out of the picture. We teach and study law and the interactions between law and morality as if God were irrelevant—almost (as Pope Leo XIII put it) as if there were no God at all.

Roe v. Wade made obvious use of our cultural consignment of morality to “Caesar” when it engrafted onto the Constitution the right to kill God’s littlest creations—children whom He knew before He formed them in their mothers’ wombs—children whose inmost being He created and whose bodies He knit together in their mothers’ wombs.

At the very end of Justice Alito’s opinion for the Court overruling Roe v. Wade, he abandoned, sub silentio, any notion that the federal Constitution might protect the right to life of human fetuses, and announced the moral position that the Court was adopting:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

Thus did the Court leave the fundamental moral issue of the right-to-life of God’s littlest children to the tender mercies of the fifty state legislatures.

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About Raymond B. Marcin 2 Articles
Raymond B. Marcin is a Professor of Law Emeritus at The Catholic University of America School of Law. He has taught Constitutional Law for four decades and has co-authored The American Constitutional Order: History, Cases, and Philosophy (with Kmiec, Presser, and Eastman), 3rd ed. (Charlottesville, VA: LexisNexis, 2009).


  1. “Thus did the Court leave the fundamental moral issue of the right-to-life of God’s littlest children to the tender mercies of the fifty state legislatures.”

    In accordance with the Constitution…

    • “In accordance with the Constitution…” Please finish the rest of the sentence to make your point clear. It might be a point worthy of discussion.

      • Really, it shouldn’t need elaboration – the states are sovereign in all matters except those delegated to the Federal Government, which are very limited despite unconstitutional expansions by all branches of the Federal Government.

        • You are describing the Tenth Amendment quite accurately.
          But the article concerned the right to LIFE, and the United States Constitution explicitly protects the right to LIFE in the Fifth and Fourteenth Amendments. And so the federal government has the power (and indeed the duty) to protect the right to life.
          It’s the right to ABORTION that has no basis in the federal Constitution, and the federal government (as you correctly suggest) violates the Tenth Amendment when it tries to protect the abortion right..
          The thesis of the article is that the Court in the Dobbs case failed to accord the federal constitutional right to LIFE to God’s littlest children. Whether God’s littlest children qualify as “persons” to have that right is yet to be decided.

          • We could go ahead argue about the 14th Amendment and whether it was ratified licitly or not (it wasn’t), and whether by that point we even had a constitutional federal government. (We did not.) The point is, SCOTUS chose not to go down the path of using incorporation and returned the issue to the states as in accordance with the Constitution when it was ratified, not subsequently when it had been repeatedly violated. Now one can go ahead an play along with the semblance of legitimacy and use the letter of the law to try to change things or one can recognize that the Federal leviathan itself is the cause of many problems afflicting the states, including the problems that it creates overseas. Essay-writing and political advocacy, as means of mass politics with the goal of “getting the vote out” will do nothing to stop the Federal leviathan.

          • I think this reply of yours is apt and succinct. How can the SC not hold that a baby in the womb at one day prior to birth is a person with a right to life. Once the dam is broken that at some point a baby in the womb is legally a ‘person’ then there is no logical way to deny ‘personhood’ to any child in the womb without simply resorting to a materialistic nihilism that denies the ensoulment of the child. One would hope these ‘Catholic’ justices would come to recognize their duty instead of washing their hands of it as Pontius Pilate. Further, on the gospel we are informed that two miraculously conceived babies, named by an angel, are fully aware of each other. The Baptist leapt in the womb at the presence of the Beloved One, newly conceived.

  2. Perhaps Alito did not “ignore” the issue of personhood. Instead, did he frame the majority decision to dismantle the Roe decision precisely on the grounds of its claimed foundation in precedent, cultural history, and science? The remaining issue now at the state level, then, becomes partly one of arguing successfully that even in the case of doubt about personhood, a hunter does not shoot blindly in the dark…

    Too little noticed is the precision (a far cry from today’s papal ambiguities!) in Pope St. John Paul II’s “The Gospel of Life” (n. 60):

    “[….] Even if the presence of a spiritual soul cannot be ascertained by empirical data, the results themselves of scientific research on the human embryo provide ‘a valuable indication for discerning by the use of reason a personal presence at the moment of the first appearance of a human life: how could a human individual not be a human person’ [citing Donum Vitae, 1987, I, No. 1: AAS 80, 1980, 78-79].

    “Furthermore, what is at stake is so important that, from the standpoint of moral obligation, the mere probability that a human person is involved would suffice to justify an absolutely clear prohibition of any intervention aimed at killing a human embryo. Precisely for this reason, over and above all scientific debates and those philosophical affirmation to which the Magisterium has not expressly committed itself [!], the Church has always taught and continues to teach that the result of human procreation, from the first moment of its existence, must be guaranteed that unconditional respect which is morally due to the human being in his or her totality and unity as body and spirit: ‘THE HUMAN BEING IS TO BE RESPECTED AND TREATED AS A PERSON FROM THE MOMENT OF CONCEPTION [italics]; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life'” [ibid. loc. cit, 79].

    Had Alito imposed that “which the Magisterium has not expressly committed itself,” would the forthcoming state-level debates be more vulnerable, as well as the (religiously overreaching?) Dobbs ruling itself? Dobbs cleanly and simply reverses Roe v Wade.
    Human “reason”—our natural and universal access to reality—now must be restored, one breath at a time and surely over years and even decades. That each woman and her baby (both) are transcendentally and wonderfully made, because we are not God; and therefore, that human procreation of new and distinct human beings/persons is more than an arbitrary, gender-theory option. And that the “unspeakable crime” of abortion has been marketed deceitfully as a government-conferred right (rite?) to be routinely dispensed by “health service providers” to “health service consumers.”

  3. The Court accomplished a great deal in overturning Roe v. Wade. If Professor Marcin is disappointed that the Court did not accomplish more, that just means we have to keeping working. We all should have known that no court case was going to resolve everything.

    • Agreed. Justice Alito and his compatriots are heroes for overturning Roe v. Wade in the face of death threats and attempted murder, and likely they could not have kept their majority coalition together if they had taken on the federal constitutional right-to-life issue directly. We in the pro-life mind-set indeed have to keep working. That is (I had hoped) the point of the article.

      • I think that we can be glad that Roe+Casey is gone and durned upset about Dobbs, for the reasons that this article suggests. It is not about “imposing one´s dogma.” The Fourteenth amendment says no laws may alienate life, liberty and property without Due Process. Once one has robustly abandoned the legal positivist brigade, it becomes crystal clear what this ought to mean with regard to abortion, especially if one makes the necessary distinction between abortion on demand and medically justified (medically necessary) abortion. If one has that clear then in principle it becomes clear what the Constitution ought to be understood as saying as regards abortion and the protection of life, and at the same time the question of a woman´s bodily autonomy, the right to choice, and reproductive freedom are suddenly not in principle in conflict with society´s duty to protect unborn life. Dobbs is nothing to party about. It is derelict. In a very real way it creates a more liberal abortion regime than the actual one. Let everybody decide! It illustrates the neo-liberal penetration of the Catholic Church and its deleterious and tragic results.

        • Good morning Father. I hope this finds you well.
          There is no such thing as a medically necessary induced abortion. Perhaps you are thinking of an induced delivery instead? Those can be necessary and licit.
          One of my daughters required an emergency C-section to save her life and the life of her child. It was an earlier delivery than planned but praise God and the NICU everyone is doing well today.
          You have a blessed Father.

  4. Chief Justice Taney NEVER denied personhood to blacks. Any assertion otherwise is peddling in falsehoods. One can be a person without being a citizen, the latter status entitling one to access to the federal courts in cases of State diversity. This is actually how the Chief Justice framed the question:
    “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.”
    The Chief Justice answered his own question, raised sua sponte, in the negative. In point of fact, I am certain the Chief Justice got this absolutely wrong, and Justice Curtis did a masterful job at demolishing Taney’s political pseudo-history. But it helps not one whit the cause of the unborn to continue to anachronistically beat the tub of Abolitionism. In point of fact, the pro-abortion faction is far more directly aligned with Abolitionism than the converse. If one does not understand 19th Century Anglo-American law, one should stay silent.

    • “[I]n point of fact, the pro-abortion faction is far more directly aligned with Abolitionism than the converse.”
      I sense politics in your comment, The “pro-abortion faction” is today the Democrat Party, which has had a pro-abortion plank in its party platform ever since the aftermath of Roe v. Wade. And in terms of 19th Century American law, it was the Democrat Party that supported slavery, segregation, the Ku Klux Klan, and “Jim Crow” legislation. It was the Republican Party (formed as an anti-slavery party) that has been “far more directly aligned with Abolitionism.”

      • Well, things change. The Democrat party used to stand for some good things. The hardcore segregationists formed their own breakaway party if I remember correctly.

        The GOP establishment has used an anti-abortion stance as a way to lure prolife voters for 40 years but they accomplished very little. I vote GOP because of their platform but it took an outsider like Donald Trump to shake things up & the result was the fall of Roe. Praise God.

      • Not sure what is meant by “political.” The comment was meant to be philosophically-oriented. The fact is, the poles have reversed; and, if there is now a solid South, it is solidly Republican. I mean, most of us who would have been Democrats in the 19th Century are now Republicans. No, the pro-abortion position and the Abolitionists share the same principle, to wit: No one can be legally compelled to serve another against that person’s will. To which, we Republicans (of today) absolutely demur.

        • Have you tried applying your line of reasoning to the laws governing child support? We humans have long, dependent childhoods. No child is truly viable until they are totally self-supporting. Child support is child support, whether the child is unborn or born.

  5. Focusing on “person” is a valuable insight, especially because the Supreme Court says corporations are people (i.e., persons). However, I think it’s more valuable to focus on “potential life” … which is exactly what Roe calls that thing in a woman’s womb. Roe denies it is an embryo, fetus, unborn baby, baby, human life, or any form of life. By declaring it “potential life”, Roe gives women the constitutional right to kill it — even though killing something not alive seems confusing. The Devil could not have hoped for more, when it comes to naming that thing in a woman’s womb.

  6. We will eventually need to resolve the question of when human life begins on a national level. 50 individual states each making differing scientific determinations simply isn’t going to work. The only rational way to deal with this is to recognize that human life begins at conception and consequently is entitled to the equal protection of the law– in every state.

      • Excellent point Stephen.

        In my debates with abortiphiles,I’ve often asked them that?

        I asked: So, if you were not a human being in the womb, were you somehow a hyena that morphed into a human being as it travelled through the birth canal?

  7. The law on “personhood” at the time the Fourteenth Amendment was added to the U. S. Constitution is comprehensively presented in the Brief of Amici Curiae Scholars of Jurisprudence John M. Finnis and Robert P. George in Support of Petitioners, filed July 29, 2021 (see “docket” menu for Dobbs v. Jackson at The Introduction reads, in part,

    “Scholarship exposing those errors [i.e., the Roe v. Wade “Court hurdled over text and history to an error-strewn denial that unborn human beings are persons under the Amendment”] clears the ground for a reexamination of Texas’s position in Roe. While recalling that scholarship, this brief sheds fresh light on the Amendment’s original public meaning, focusing on common-law history (including primary material) that previous scholarship has not adequately noted or explored. That history proves prohibitions of elective abortions constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.”

    The discussion that follows is a fascinating look into several centuries of relevant legal history.

  8. In order to attack abortion on the federal level (as opposed to protect it) will likely not come via the 14th A substantive due process provision, but will have to look to the equal protection clause. Substantive due process only prevents States from doing things (e.g., outlaw abortion). However, the equal protection clause indicates that the State must enforce all laws (e.g., murder) without discrimination (e.g., the unborn). Dobbs wasn’t about that issue. So someone will have to somehow sue a State gov’t for failing to protect the life of the unborn and cite equal protection.

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  3. The issue ignored in Dobbs and the overturning of Roe | Passionists Missionaries Kenya, Vice Province of St. Charles Lwanga, Fathers & Brothers

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