Decision returns abortion to be decided by elected representatives
Oswald Clark and Paul Tuns:
On June 24, in a 6-3 decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court of the United States upheld a Mississippi law that banned abortion after 15 weeks, with the majority opinion, joined by five justices, holding that abortion is not a constitutionally protected right thus overturning the infamous 1973 Roe v. Wade ruling and its predecessor, Casey v. Planned Parenthood (1993). Chief Justice John Roberts argued that it was unnecessary to overturn the Roe precedent to uphold Mississippi’s law. The three Democrat-appointed justices all voted against the Mississippi law and supported upholding Roe and Casey.
Overturning Roe v. Wade is a vindication of a 40-year plan to install so-called originalist justices on the Supreme Court to reverse various activist decisions from the 1960s and 1970s, a project that ended up highly politicizing Supreme Court appointments and influencing presidential elections and the power to appoint judges.
A version of the majority opinion was leaked in early May, with most pundits assuming that a clerk for one of the liberal justices provided a copy of a draft opinion written by Justice Samuel Alito to Politico in order to put pressure on one of Donald Trump’s three judicial appointees to abandon the majority. Despite the publication of the justices’ home addresses and constant protests outside their residences and an allegedly abandoned assassination attempt on Justice Brett Kavanaugh, the pressure did not succeed in changing any of the five justices’ minds.
The majority decision was written by Justice Samuel Alito and was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. There were only minor changes to the leaked version as well as the addition of rebuttals to the dissenting opinion and Chief Justice Roberts’ concurrence.
Justice Alito stated that Roe was “egregiously wrong from the start” and its “reasoning was exceptionally weak, and the decision has had damaging consequences” including deepening political divisions within the country. Because Roe was wrongly decided in the first place, there was no need to respect its precedent.
He also provided a sweeping historical view of abortion in American law, noting that, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Basing his argument on Washington v. Glucksberg that a right must be “deeply rooted in Nation’s history,” Justice Alito said that until the last five decades, no right to abortion had been acknowledged in American law and that the majority of states made abortion a crime throughout the pregnancy prior to Roe taking the issue away from the democratic deliberations of legislatures.
Anticipating the hysterical reaction from progressives that reversing Roe would result in a widespread assault on Court precedents, Justice Alito said that abortion was different from other privacy rights because “Abortion destroys what (Roe and Casey) decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being’.”
In a notable addition to the leaked copy, Justice Alito responded to the dissent, stating it “is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition’.” He added: “The dissent does not identify any pre-Roe authority that supports such a right – no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.”
Justice Alito also responded to Roberts’ concurrence which sought a middle ground attempting to uphold first-trimester and pre-viability limits on abortion without overturning the federalized right to abortion imposed by Roe and Casey. He said there are “serious problems with this approach” that would only prolong the turmoil caused by Roe because it would require the Court to determine each state’s different deadline for obtaining a constitutionally protected abortion. He also noted that the Chief Justice provided no legal argument that there was a constitutional right to abortion and thus no reason to uphold Roe.
Justices Thomas and Kavanaugh wrote separate concurrences. Justice Thomas urged the Court to reconsider other decisions based on the substantive due process emanations of the Court that Alito found so egregious when applied to Roe. He said that cases such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges – allowing birth control, reversing anti-sodomy laws, and establishing same-sex “marriage” respectively – should be revisited, “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
Justice Kavanaugh’s concurrence is not binding but could make it more difficult for states to enforce their bans on abortion. He wrote that it would be unconstitutional for a state to restrict a woman traveling to another state to obtain an abortion. Justice Kavanaugh also argued that returning the issue to the states was “scrupulously neutral” of the Court because some states would bar abortion, some would restrict or curtail it in various ways, and others would allow a broad abortion license. As part of that neutrality he sought, Justice Kavanaugh also rejected the pro-life argument, such as those offered by John Finnis of the University of Notre Dame Law School and Robert P. George of Princeton, that abortion cannot be permitted in the United States because the 14th amendment protecting liberty applied to preborn children.
Chief Justice Roberts wrote a separate concurrence stating that both the gestational approach of Roe and viability line established by Casey be discarded because they were “unnecessary to decide the case before us.” He also wrote that abortion laws should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further” although he left open the possibility “for another day whether to reject any right to an abortion at all.”
Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor co-wrote the dissent, saying “the majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom.” Justice Alito said that equality could not be considered by the Court because no lawyers arguing the cases ever proposed an equality consideration. They also said, “The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives.” Justice Alito noted that whatever fabric they might weave, there was no constitutional basis for the argument. The three lamented that “many millions of American women … today lost a fundamental constitutional protection.”
Michael Stokes Paulsen, a law professor at the University of St. Thomas, in Minneapolis, wrote in The Public Discourse, “Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time.” Paulsen explained: “It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision.”
Helen Avare, professor of law at George Mason University, wrote in the National Catholic Register, that Dobbs “is no narrow legal win, but a marvelous development that respects democracy.” Avare wrote that “June 25, 2022, is a new and wonderful day for pro-life advocates. It is the culmination of an unrelenting effort – unrelenting scholarship, unrelenting willingness to suffer the slings and arrows of elite opinion, unrelenting witness to the value of every single human life, unrelenting care for pregnant women and mothers and post-abortive women, and unrelenting marches, letter campaigns, visits to legislative offices, and funding drives.”
The first March for Life in Washington was organized by the late Nellie Gray to mark the first anniversary of Roe in 1974 with the goal of putting pressure on public opinion and elected officials to overturn Roe. The Dobbs decision overturning Roe occurred on June 25, which would have been Gray’s 98th birthday.
Democrats in Washington are calling for a federal law codifying a legal right to abortion for the country, but they do not have the votes in the Senate to get it passed. President Joe Biden has said his administration will do what it takes to promote abortion across the country, including making it easier to obtain abortion pills in states that ban abortion.
Republicans in Washington are opposed to pro-abortion legislation and at the state level are supporting bans or restrictions of various kinds. Pro-life groups such as Americans United for Life and the National Right to Life Committee are eager to pass pro-life bills at the state level.
Former vice president Mike Pence has called for a federal ban on abortion, saying that the piecemeal approach of bans or limits in some states but not others does not go far enough to protect life in the womb. Such protection could be codified in law or enacted through a Human Life Amendment to the U.S. Constitution.
For the foreseeable future, most of the political action will be at the state level. Thirteen states outlawed abortion within 30 days – or less – of the Dobbs decision due to so-called trigger bans that took effect once Roe was overturned. Alabama, Arkansas, Kentucky, Louisiana, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin all protect preborn children from conception to birth, although several states have exceptions for the life of the mother or in case of rape or incest. Judges in Louisiana and Utah prevented pro-life laws from taking effect while they are challenged by abortion advocates.
Missouri is considering a law that would allow state citizens to sue anyone who helps a Missouri woman obtain an out-of-state abortion, and legislators in Arkansas and Oklahoma are considering similar laws. David Cohen, a law professor at Drexel University in Philadelphia, told the Washington Post, that restricting out-of-state abortions will be “the next frontier” for the pro-life movement.
Operation Rescue reported that within four days of the Dobbs decision, more than 40 abortion mills announced they were closing their doors for good, with many more expected to follow. Others are expecting increased business; Planned Parenthood Illinois said it expects 14,000 women from neighbouring states to flock to their facilities.
Paulsen wrote, “Dobbs does not end the violence of abortion,” and “there is much work to be done” to end abortion. “But for now, this is a moment for celebration.”
