u/Freethinking-

On the status of abortion in American constitutional law, renowned legal scholar Ronald Dworkin once wrote:

"It seems [superficially] more democratic, and also better suited to the inherent complexity of the issue, that different groups of Americans should be permitted to decide, through political action state by state, which solution fits their own convictions and needs best. That first impression is misguided... Leaving the abortion issue to state-by-state politics will not... mean that each woman will be able to decide which solution best fits her convictions and needs. ...abortion-related fatalities were 40 percent higher before Roe v. Wade. Blacks suffered most."

"...a fetus has no interests [during early pregnancy because] nothing has interests unless it has or has had some form of consciousness — some mental as well as physical life... People who think that abortion is morally problematic, even though a fetus has no interests of its own, [believe] that human life is intrinsically, objectively valuable... ...a belief in the objective and intrinsic importance of human life has a distinctly religious content. ...the right to procreative autonomy, from which a right of choice about abortion flows, is well grounded in the First Amendment... [So] we must insist on religious tolerance in this area... ...if Roe is wholly reversed... a dark age for the American constitutional adventure... will be confirmed, spectacularly..."

The U.S. Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization thus appears to have spectacularly ushered in a dark age of American law. Yet, the different opinions of that decision reflect a light at the end of a tunnel, in the following respects:

1. By leaving contraceptive freedom intact, the majority left open the question of whether abortifacient medications and the termination of preconscious conceptuses are morally equivalent to contraception — a First Amendment matter of conscience per Dworkin's argument, which goes to the heart of pro-life opposition while having the potential to pass the majority's "history and tradition" test;
2. As the Chief Justice explained in his partial concurrence, complete reversal of Roe was unnecessary to resolve the 15-week ban issue in Dobbs, and so that part of the majority opinion can be treated as non-binding obiter dicta, clearing the way for a distinguishable First Amendment case that shifts the focus from privacy to conscience;
3. Since a bare majority revoked a right held for fifty years, while the dissenting justices represented a historical consensus, the Dobbs dissent remains arguably correct on the basis of stare decisis alone, maintaining that "all that has changed is this Court" rather than the underlying law, facts, or attitudes.

In that context, another quotation from Dworkin might be apposite:

"We cannot assume... that the Constitution is always what the Supreme Court says it is... The extent of community indifference to anti-contraception laws... would never have become established had not some organizations deliberately flouted those laws...  We must also reject the [view] that if the law is unclear a citizen may properly follow his own judgment until the highest court has ruled that he is wrong.  This fails to take into account the fact that any court, including the Supreme Court, may overrule itself [and thus overrule an overruling]  ...if the issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man [or pregnant woman or healthcare provider] is within [their] social rights in refusing to accept that decision as conclusive."

Sources:

Ronald Dworkin, Freedom's Law, chapters 1 & 3

Ronald Dworkin, "Civil Disobedience," Taking Rights Seriously

I endorse the opinion that H.L.A. Hart and Ronald Dworkin are the foremost legal theorists of our time. Although the former was a legal positivist and the latter a non-positivist, one explanation of their shared success is the extent to which, from opposite directions, they narrowed the gap between these rival, historically dominant traditions. Commentators have observed that Dworkins' theory of constructive interpretivism has, as Hart himself even noted, "brought the substance of this position very close" to Hart's soft or inclusive legal positivism "in recognizing that the courts in fact have and frequently exercise a law-creating discretion," based on moral norms included within the law. On that understanding, passages by Dworkin such as the following might be accorded quasi-canonical status:

"General theories of law... are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice."

"Judges [ideally] decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community... It will include convictions about both fit and justification. Convictions about fit [with legal practice] will provide a rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible... Hard cases arise, for any judge, when [the] threshold test does not discriminate between two or more interpretations of some statute or line of cases. Then he [sic] must choose between eligible interpretations by asking which shows the community's structure of institutions and decisions - its public standards as a whole - in a better light from the standpoint of political morality. His own moral and political convictions are now directly engaged... He must accept that in finally choosing one interpretation over another of a much contested line of cases... he is developing his working conception of law in one rather than another direction. This must seem to him the right direction as a matter of political principle... There is, in this counsel, much room for deception, including self-deception. But on most occasions it will be possible for judges to recognize when they have submitted an issue to the discipline it describes. And also to recognize when some other judge has not."

Sources:

H.L.A. Hart, The Concept of Law, Postscript (last endnote)

Ronald Dworkin, Law's Empire, chapters 3 & 7

Jeremy Bentham, the eighteenth-century pioneer of philosophical radicalism and utilitarianism, is one of the philosophers most cited by the Supreme Court of Canada, and by other top courts around the world (googleable). Lately, I have developed an immense admiration for Bentham, as a fellow neurodivergent, and as a moral and legal reformer. Yet, his genius was madness to me until I cleared my head of the kind of unscientific metaphysics which he had challenged as a barrier to progressive legislation, and which he had sought to replace with a demystified utilitarian norm of pursuing the greatest happiness of the greatest number.

To either proponents or critics who hold that utilitarianism is irreconcilable with principles of justice or individual rights as constraints on aggregative welfarism, I would argue that the opposite conclusion follows from Bentham's own methodology of generalizing from individual to community welfare. As he wrote in An Introduction to the Principles of Morals and Legislation, "It is in vain to talk of the interest of the community, without understanding what is the interest of the individual."  Having weighed the consequences of a decision for any given individual, Bentham said, "Take an account of the number of persons whose interests appear to be concerned; and repeat the above process with respect to each."  Exegesis aside, in my opinion, this iterative concern for individual interests leads to community welfare, not as an undifferentiated whole, but as the welfare of every individual compatible with the same for all - a constraint of individualistic justice flowing from utilitarian premises (and if this means I am not a pure utilitarian, I have no problem dropping that rather misleading label).

Bentham's "inequality-minimizing principle" can be understood in the same way (and also has a name which might serve as a motto for the constitutional welfare state which Canadians have inherited under his influence). Similarly, his principle of publicity implies that governmental and judicial proceedings should be seen by all concerned to be fair - which appears to be the context in which Bentham has most often been quoted by the Supreme Court of Canada: "Publicity is the very soul of justice."

What is the missing link in the following chain of reasoning?

1. All ethical orientations fall within a spectrum between the poles of amoral egoism and Golden Rule reciprocity, with reciprocal egoism as an intermediate orientation.
2. Hence, all political moralities likewise fall within the same spectrum, ranging from group egoism or tribalism, through reciprocal egoism or liberalism, to Golden Rule reciprocity or equality.
3. Descriptively, these three orientations parallel those often labelled right, center, and left respectively on the political spectrum.
4. Prescriptively, insofar as the above parallel is not empirically exact, the political spectrum should be reconceived to match the ethical spectrum because, by definition, this is what actually matters from a moral perspective.
5. The political spectrum, in short, can and should be understood as a scale of social ethics, ranging from egoism/tribalism ("the right") to an ideal based on what all can accept when identifying with each other's viewpoint ("the left").