Nearly fifty years ago in an “exercise of raw judicial power,” the Supreme Court decided Roe v. Wade and concocted a constitutional right for a woman to kill her unborn child.[i] In 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed the right to a pre-viability abortion “is the most central principle of Roe v. Wade.”[ii] Accordingly, the Court crafted the undue burden standard to analyze the constitutionality of abortion regulations. The test was a “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[iii] Yet, “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.”[iv] Roe infringed upon the democratic process and created legal chaos. It divided families, disempowered women, and dehumanized unborn children. After half a century of devastating fallout, the Supreme Court finally has overturned Roe.
Dobbs Majority Opinion
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court unequivocally “hold[s] that Roe and Caseymust be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”[v] According to the Court, the 14th Amendment does not include an abortion right.[vi]Although the Supreme Court has recognized some rights under substantive due process, those rights must be “deeply rooted in our Nation’s history and tradition” and are an essential component of “ordered liberty.” “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.”[vii] When the United States adopted the Fourteenth Amendment, the majority of states had statutes criminalizing abortion at all gestational ages. There are no other precedents supporting a supposed abortion right.
Dobbs refutes that abortion is part of a broader personal dignity and autonomy right. “While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ ‘the universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts.”[viii] “Ordered liberty sets limits and defines the boundary between competing interests” and states may strike a different balance between a woman’s interests and unborn life.[ix] Although there are other autonomy cases involving marriage, childrearing, and contraception, abortion is different because it “destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”[x]
The Courts discusses the impact of stare decisis on Roe over many pages. Stare decisis is Latin for “to stand by things decided,” or to uphold settled precedents. The Court lists five stare decisis factors: (1) nature of the court’s error, (2) quality of the reasoning, (3) workability, (4) effect on other areas of law, and (5) reliance interests. Roe fails each factor.
(1) Roe was erroneous. Similar to Plessy v. Ferguson’s “separate but equal” doctrine, “Roe was also egregiously wrong and deeply damaging.”[xi] As the Court describes:
“Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”[xii]
(2) Roe had poor legal reasoning. “Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent.”[xiii] Roe instituted a trimester test, which “was the Court’s own brainchild,” and manufactured a novel viability line.[xiv] Even as Casey reaffirmed Roe’s “central holding” of a contrived abortion right, it “silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework.”[xv] The Roe Court engaged in fact-finding, and disregarded or mistakenly portrayed abortion’s legal history. Viability is an incoherent, shifting line, and “makes no sense.”[xvi]
(3) Roe and Casey were unworkable. The undue burden standard was ambiguous and subjective. Even in Casey itself, the Justices arrived at different legal conclusions under the same test. In the recent decisions of Whole Woman’s Health v. Hellerstedt and June Medical Services v. Russo, Supreme Court Justices argued about how to interpret the undue burden standard.[xvii] The lower courts regularly split over whether a type of legislation is constitutional under the same test.
(4) Roe adversely affected other areas of law. “Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.”[xviii] June Medical Services highlighted this conflict, discussing whether an abortionist had third-party standing on behalf of a woman to challenge a health and safety law intended to protect a woman from the abortion business. Abortion law also altered the standard for facial constitutional challenges, res judicata, severability, canon of constitutional avoidance, and First Amendment doctrines.
(5) There are no reliance interests that spur the Court to retain Roe. Even Casey conceded that abortion has no traditional reliance interests. Rather, Casey crafted a novel social reliance theory, which is unsupported by case law. Dobbs is returning the issue to the legislative bodies.
Dobbs affirms that the rule of law demands the overturn of Roe. As the Court writes, “we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”[xix] Roe did not end the abortion issue, rather it inflamed it. Twenty-six states expressly have asked the Court to overrule Roe and Casey.
The Supreme Court finally analyzes Mississippi’s Gestational Age Act under the rational basis standard, if the State has a legitimate purpose that is rationally related to the law. The Mississippi law easily passes rational basis review, as it protects maternal health, upholds the dignity of unborn children, and safeguards the integrity of the medical profession.
As the Court concludes, “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”[xx] Dobbs has overturned Roe and sent the abortion issue back to the democratic process.
Justice Thomas’ Concurrence
Concurring in the opinion, Justice Thomas agrees “there is no constitutional right to abortion,” but writes separately to highlight the flaws he finds in substantive due process jurisprudence.[xxi] The Justice describes substantive due process as “an oxymoron that ‘lack[s] any basis in the Constitution.’”[xxii] “[T]he Due Process Clause at most guarantees 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.”[xxiii] Even if the Court looks for textual support elsewhere in the Constitution for other substantive due process, “abortion is not [a right] under any plausible interpretive approach [of the Constitution.]”[xxiv]
Justice Kavanaugh’s Concurrence
Justice Kavanaugh, concurring in the opinion, writes separately to highlight the Constitution’s neutrality towards abortion and the Court’s role in maintaining this neutral position. While the Court “has held that the Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” Justice Kavanaugh rejects the notion that abortion fits within this description.[xxv] The Justice also rejects the argument, as espoused by some amicus briefs, that the “Constitution outlaws abortion throughout the United States.”[xxvi] Instead, the Justice calls for the Court to be “scrupulously neutral” so as not to disrupt the democratic process by revoking the vote of the people in matters about which the Constitution is silent.[xxvii] According to Justice Kavanaugh, “the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral.”[xxviii]
Chief Justice Roberts’ Concurrence in the Judgment
Chief Justice Roberts concurred in the judgment, agreeing with the majority that Mississippi’s fifteen-week gestational limitation is constitutional, but disagreeing with their decision to overturn Roe and Casey.[xxix] The Chief Justice recognizes “the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense.”[xxx] In fact, “Roe’s defense of the line boiled down to the circular assertion that the State’s interest is compelling only when an unborn child can live outside the womb, because that is when the unborn child can live outside the womb.”[xxxi] However, under principles of judicial restraint and stare decisis, he would maintain the underlying abortion right.[xxxii] Instead of the undue burden standard, Chief Justice Roberts would institute a new “reasonable opportunity” litigation standard that reviews whether an abortion law “provid[es] an adequate opportunity [for a woman] to exercise the right Roe protects.”[xxxiii]
Justices Breyer, Sotomayor, and Kagan’s Joint Dissent
Justices Breyer, Sotomayor, and Kagan penned a joint dissenting opinion. Providing an overview of the holdings and legal reasoning of Roe and Casey, they emphasize the “balance” that Casey’s viability line struck between a woman’s interest and the State’s interest in protecting prenatal life.[xxxiv] According to the dissent, the majority’s holding is a “one-sided view” that “recognizes only the State’s [interest].”[xxxv]
Ignoring the fact that seven men wrote Roe, the dissent discourages extensive use of the Fourteenth Amendment’s history because it was ratified by men, and thus “not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.”[xxxvi] The Justices also disagree with the majority that certain precedents “have nothing to do with each other, or with the right to terminate an early pregnancy,” rather asserting that precedents “about bodily autonomy, sexual and familial relations, and procreation are all interwoven.”[xxxvii]
The Justices raise a stare decisis argument: “none of those factors [i.e., changes in legal doctrine, factual changes, or absence of reliance] apply here: Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law…”[xxxviii] Rather, the dissent believes “tens of millions of American women have relied, and continue to rely, on the right to choose.”[xxxix] The Justices contend that, without the right to abortion, “women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life” diminishes, and further argue that impoverished women especially rely on such a purported right.[xl]
In support of Casey’s undue burden standard, the dissent contends the test has “given rise to no unusual difficulties.”[xli] Rather, the majority is “vastly overstating the divisions among judges applying the standard.”[xlii]
The Justices ultimately dispute the majority’s opinion, which they view as based upon “weakening stare decisis,” which “in a hotly contested case like this one calls into question this Court’s commitment to legal principle.”[xliii] The Justices argue that the decision “undermines the Court’s legitimacy” and constitutional protections are subject to “a new majority, adhering to a new ‘doctrinal school,’ [which] could ‘by dint of numbers’ alone expunge [Americans’] rights.”[xliv]
Although Dobbs is a pro-life win and has returned the abortion issue to the democratic process, the fight for Life is not over. Life remains under threat in many states. We must continue to move forward vigorously and fearlessly until our laws protect human life from conception to natural death.
[i] See Roe v. Wade, 410 U.S. 113 (1973).
[ii] 505 U.S. 833, 871 (1992).
[iii] Id. at 877.
[iv] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022).
[v] Id. at 2242.
[vi] Id. at 2246-54. See also U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”).
[vii] Dobbs, 142 S. Ct. at 2235, 2248.
[viii] Id. at 2257.
[ix] Id. at 2236, 2257.
[x] Id. at 2258.
[xi] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265 (2022).
[xii] Id. (citation omitted).
[xiii] Id. at 2266.
[xiv] Id. (citing Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade 127, 141 (2012)).
[xvi] Id. at 2261.
[xvii] Dobbs v. Jackson Women‘s Health Org., 142 S. Ct. 2228, 2272-74 (2022) (citing Whole Woman’s Health v. Hellerstedt, 577 U.S. 1128 (2016); June Med. Servs., L.L.C. v. Russo, 140 S. Ct. 2103 (2020)).
[xviii] Dobbs, 142 S. Ct. at 2238, 2275-78.
[xix] Id. at 2278.
[xx] Id. at 2284-85.
[xxi] Id. at 2300 (Thomas, J., concurring).
[xxii] Id. at 2301 (citations omitted) (alteration in original).
[xxiii] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring) (emphasis in original).
[xxiv] Id. at 2302.
[xxv] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2304 (2022) (Kavanaugh, J., concurring).
[xxvi] Id. at 2305.
[xxviii] Id. at 2310.
[xxix] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2310-11 (2022) (Roberts, C.J., concurring in the judgment).
[xxx] Id. at 2310.
[xxxi] Id. at 2311 (citations omitted).
[xxxii] See id. at 2313 (”None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe.”)
[xxxiii] Id. at 2315.
[xxxiv] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2319 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting) (”The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents.”)
[xxxv] Id. at 2323.
[xxxvi] Id. at 2324.
[xxxvii] Id. at 2327.
[xxxviii] Id. at 2234.
[xxxix] Id. at 2334-35.
[xl] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2344 (2022).
[xli] Id. at 2335.
[xlii] Id. at 2235-36.
[xliii] Id. at 2348.
[xliv] Id. at 2350.