The U.S. Supreme Court, after a 49-year struggle, has finally recognized Roe v. Wade has no constitutional basis and explicitly overruled it, as well as its progeny, Planned Parenthood of Southeastern Pennsylvania v. Casey, thereby returning the abortion issue to the democratic process where it belongs. As the Court writes in Dobbs v. Jackson Women’s Health Organization:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
In its well-reasoned decision, the Court explains that Roe’s purported abortion right is not protected as a liberty right under the Fourteenth Amendment and the practice has no basis in our country’s legal history and traditions.
Although the Supreme Court has recognized a constitutional protection for privacy rights, including marriage, contraception, and child-rearing, Dobbs acknowledges that abortion is inherently different.
“Abortion destroys what [Roe and Casey] call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” In fact, the majority opinion calls out the dissent for “the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.”
Roe is not entitled to adherence under stare decisis. Comparing Roe to Plessy v. Ferguson, in which the Court instituted the racist “separate but equal” doctrine, the Dobbs majority points out that “Roe was also egregiously wrong and deeply damaging.” It also states that Casey’s undue burden standard is unworkable and has left the lower courts in disarray. Americans United for Life’s Senior Counsel, Clarke Forsythe, was cited by the majority in its discussion of the arbitrariness of the viability line for litigating abortion cases.
Key Opinion Takeaways
In his concurrence, Justice Thomas focused on how the abortion “right” emerged as a distortion of substantive due process. “The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.” And “even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.”
Justice Kavanaugh concurred, clarifying that the Judiciary is not the proper forum for deciding the abortion issue and reiterating that stare decisis did not prevent overturning Roe and Casey. “The Constitution is neutral, and this Court likewise must be scrupulously neutral.” When the Roe Court chose one side of the abortion issue, it “distorted the Nation’s understanding of this Court’s proper role in the American constitutional system and thereby damaged the Court as an institution.”
Chief Justice Roberts concurred in the judgment, discussing how the viability line in Roe and Casey is unworkable. However, the Chief Justice stated he would have decided the case narrowly, merely upholding Mississippi’s law while maintaining Roe’s contrived abortion right.
Dissenting Justices Breyer, Sotomayor, and Kagan would have upheld the Court’s flawed abortion jurisprudence. They urged the Court to uphold Roe and Casey under stare decisis. The dissenting Justices also voiced their concern over Dobbs’ impact on other substantive due process cases.
Dobbs is a landmark decision for the pro-life movement and has returned the abortion issue to the democratic process where it rightfully belongs. We will continue to fight vigorously until the laws in every state protect all human life from conception until natural death.
