In this article for First Things, Prof. Gerard Bradley argues that the Court's holding in Dobbs can only be coherently interpreted if one assumes the affirmation of fetal personhood. Writing in response to setbacks for the pro-life cause that have occurred post-Dobbs at the hands of state-wide ballot initiatives and lower court judges, Bradley contends that Dobbs not only overruled Roe's central holding that abortion was a constitutional right but also its logic that the unborn were not "persons" entitled to equal protection under the law. Despite verbiage in both the majority and concurring opinions that suggest that the Constitution is neutral on the question of abortion, Bradley suggests that the language surrounding "potential life" as the differentiating factor between the supposed "right" to abortion and the other "rights" rooted in a broader right to privacy entails that Dobbs recognizes abortion as existing on an entirely separate and far more grave moral plane. In Bradley's telling, the lax abortion laws prevailing in some states fail to recognize the reality of unborn life and lack the rational basis required under the terms of Dobbs.

Below are a few excerpts. The full piece can be found here.

“Indeed, if one thinks that our constitutional regime is based on essays comprising legal and constitutional history seasoned with elements of a primer on democratic theory, the Dobbs opinion often sounds as though it did no more than release abortion regulation from federal judicial captivity. On this reading, the Court is basically done with abortion. The rest of the story is for the “people and their elected representatives” to write.

But Dobbs is not an essay. It is a judicial opinion, and proper understanding requires it to be read in accord with established canons of legal construction. It takes a lawyer’s critical analysis, not an essayist’s curiosity, to identify what that law is.”

“Dobbs does not hold that states may permit abortion, even though several statements in it say or imply as much. Nothing in the result of Dobbs or in its three main propositional holdings or in anything essential to those holdings presupposes or implies that the states may do as they wish. The reasoning that leads to the holding that there is no constitutional right to abortion does not rely on premises that require approving ­abortion permissions.”

“Dobbs does not treat the question of fetal personhood as a game of mental gymnastics. Much less does Dobbs regard it as a question about legal fictions or textual usage or precedent, or even about history. The Dobbs Court repudiated fifty years of Supreme Court misdirection and thus tragedy, by recognizing that those “persons” entitled to equal protection of the laws include everyone who really is a person. And the reasoning in Dobbs suggests that there exists no rational basis for treating those in the womb as anything other than persons.”