Prof. Arkes analyzes the Dobbs case, arguing that the conservative Court has two options: to overturn Roe outright, or to take the slower, more cautious approach of merely upholding the Mississippi law. Even this latter option, however, could enrage the Left because it would threaten the standard of viability--and with it, the very logic of Roe.

Some excerpts:

"The Supreme Court set off tremors in the land when it announced that it would take up a case challenging a recent law in Mississippi that would bar abortions after 15 weeks of pregnancy (Dobbs v. Jackson Women’s Health Organization). That move would notably extend the restrictions of the law into a period before the onset of 'viability,' which has been at about 23-24 weeks these days—and perhaps even earlier. There is a difference, then, of only about eight weeks, and yet that has been enough to stoke the fears and warnings that Roe v. Wade could now be overruled. But once again, that shift in eight weeks does not mark anything different, anything less than human, in the baby being aborted."

"That embryo may be a 'potential outfielder' or 'potential stockbroker,' but he has never been merely a 'potential human child.'"

"...even ordinary folks, without graduate degrees, readily grasp that people don’t lose their standing as human beings when they suddenly fall ill and cannot survive without the care of others. To take the curious line that weakness now works to extinguish any rights to solicitude and care is simply to back into the old doctrine of the Right of the Strong to rule, or Might makes Right. The inscrutable point for me is why no conservative justice over the last 48 years has thought it apt to make that simple argument, to spotlight the moral emptiness of that marker of "viability.'"

"The advantage of moving step by step is that it offers the public the chance to school itself step by step: to consider a string of restrictions on abortion that people would find reasonable at every stage, as in barring late-term abortions, or abortions when the beating heart of the child can be detected. After a while, after a chain of steps that the public has come to see as patently reasonable, it could take just one more to put Roe, finally, away. If the Supreme Court settles for that limited decision—the decision simply to sustain the law in Mississippi—that could be the gentle step that puts the right to abortion 'in the course of ultimate extinction.'"

"The conservative judges on the Court have long known what is specious in all of these markers in the development of an unborn child. It is entirely possible that they will lose their patience for playing along further in this moral charade. Given the facts of the case, they may decide that the only coherent option is finally to put Roe away. But they also know that a political earthquake can overpower even just and rightful policies and institutions. And they know that a plausible path of prudence may be open. There is the inescapable plight of judges who know that they cannot be entirely detached from political statecraft. But it also supplies the ground of hope: that in the hands of this current Court, something good will yet come."

Read the full piece here.