Five of nine justices vote to return abortion question to state legislative process, where it was until almost 50 years ago.
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The Supreme Court of the United States has rejected the legal structure regarding abortion that has been the source of deep division in the American body politic for almost a half century.
In Dobbs v. Jackson Women’s Health Organization, six of the nine justices voted to uphold Mississippi’s Gestational Age Act, which bans abortion after 15 weeks of pregnancy – far earlier than the 23-28 week mark that had been set by two major abortion law precedents: the 1973 decision in Roe v. Wade, and the 1986 case that affirmed Roe, Planned Parenthood of Southeastern Pennsylvania v. Casey.
Both Roe and Casey, said the court in a majority opinion drafted by Justice Samuel A. Alito Jr., were overruled.
While concurring with the majority opinion, Chief Justice John G. Roberts Jr., however, did not vote to overturn those precedents.
Nevertheless, the majority wrote that “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
In a concurring opinion, Justice Clarence Thomas called Roe and Casey “two of this Court’s “most notoriously incorrect” substantive due process decisions coming “after more than 63 million abortions have been performed.”
Roberts, in a separate opinion, said that he would “take a more measured course” than overturning Roe and Casey. He spoke about the debate over stare decisis – the principle by which judges are bound to precedents (from the Latin phrase meaning “to stand in the-things-that-have-been-decided”).
“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further — certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered ‘late’ to discover a pregnancy. (pregnancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity. … Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”
In the majority opinion, the court deemed that “rational-basis review” – which seeks to determine whether a law is “rationally related” to a “legitimate” government interest – will be the standard to judge state abortion regulations when they undergo constitutional challenges.
“A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity,’” the court said. “It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
Those interests include “respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex or disability.”
The June 24 decision, the most anticipated ruling from the Supreme Court in years, followed the December 1 oral arguments and a dramatic year of legislative activity on the state level. Many states, apparently emboldened by a conservative majority on the court following President Donald J. Trump’s appointment of three new justices, enacted abortion laws that would clearly not pass constitutional muster with the Roe and Casey precedents. The high court also stepped in to try to resolve the dispute over Texas’ abortion restriction, which, like other states, forbids terminations once a fetal heartbeat is detectable (at about six weeks gestation), but also includes a provision that allows ordinary citizens to sue doctors who perform abortions.
The majority opinion, in which Justices Amy Coney Barrett, Brett M. Kavanaugh, and Neil M. Gorsuch also concurred – deviated little from the draft that Alito had circulated among his colleagues in early February and was leaked to the press in early May. The leak, a highly unusual and egregious violation of court protocol, was being investigated, according to Chief Justice Roberts. No announcement of any findings in that investigation has been made. Many observers speculated that the leaker or leakers had hoped to somehow engender so much anger that some of the conservative justices might change their minds about overturning Roe.
Though that tactic did not succeed, it has had a secondary effect: vandalism on the part of radical pro-abortion individuals or groups of pro-life pregnancy resource centers and churches, an assassination plot against one of the conservative justices, and a threat of “Days of Rage” if Roe should be overturned.
The pro-life community, however, is expressing gratitude that a step – once thought to be almost unattainable – has been taken. But pro-lifers realize that it is just that – a step – and not the end of abortion. The Dobbs decision does not automatically rescind the right to abortion in the United States. It allows states to do so, but many states will not. In fact, some state legislatures have already passed laws shoring up abortion’s legality and even expanding it.
But in the run-up to this week’s ruling, many states have opted to shore up the rights of the very unborn children who had previously been vulnerable to abortion. Mississippi’s law is liberal compared to that of Texas and other states that have adopted fetal heartbeat bills. Some even voted to ban abortion from the moment of conception.
”Today, the United States Supreme Court handed down one of its most life-honoring decisions in decades, simultaneously correcting one of the darkest eras in our nation’s history,” Jeanne Mancini, president of the March for Life, said in a statement. “In 1973, the Supreme Court decision in Roe v. Wade struck down state laws that protected life based on the flawed reasoning that any law restricting access to abortion prior to an unborn child’s ‘viability’ was unconstitutional. … This is all changing now.”
“With today’s decision, the Supreme Court has righted its historic wrongs in Roe, Casey, and subsequent jurisprudence, and made it possible once more for American lawmakers to uphold the human right to life,” said a statement from Americans United for Life.
“This is a historic day in the life of our country, one that stirs our thoughts, emotions and prayers, said a statement issued by Archbishop José H. Gomez of Los Angeles, president of the U.S. Conference of Catholic Bishops (USCCB) and Archbishop William E. Lori of Baltimore, chairman of the USCCB’s Committee on Pro-Life Activities. “For nearly 50 years, America has enforced an unjust law that has permitted some to decide whether others can live or die; this policy has resulted in the deaths of tens of millions of preborn children, generations that were denied the right to even be born.
“We thank God today that the Court has now overturned this decision,” the bishops said. “We pray that our elected officials will now enact laws and policies that promote and protect the most vulnerable among us.
“Now is the time to begin the work of building a post-Roe America,” Archbishops Gomez and Lori continued. “It is a time for healing wounds and repairing social divisions; it is a time for reasoned reflection and civil dialogue, and for coming together to build a society and economy that supports marriages and families, and where every woman has the support and resources she needs to bring her child into this world in love.”
“Raw judicial power”
In the opinion, Alito quoted former Supreme Court Justice Byron White from his dissent in the 1973 Roe decision, calling it an “exercise of raw judicial power.” Roe, said Alito, “sparked a national controversy that has embittered our political culture for a half-century.”
Even the Casey decision, which upheld Roe on the basis of stare decisis, “threw out Roe’s trimester scheme,” Alito said, referring to Roe’s requirement that abortion be allowed in the first two trimesters of pregnancy, when a fetus was thought to not be able to survive outside the womb on its own. Casey, he said, “substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an ‘undue burden’ on a woman’s right to have an abortion.”
The court said that although the Fourteenth Amendment has been held to guarantee some rights that are not mentioned in the Constitution, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,'” quoting the Washington v. Glucksberg physician-assisted suicide case. “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
Abortion is fundamentally different from other rights that the court has recognized as protections of liberty, he said, because abortion destroys what Roe and Casey called “fetal life.”
While some have argued that the principle of stare decisis is a good reason to uphold Roe and Casey, the majority opinion said that “it does not compel unending adherence to Roe’s abuse of judicial authority.”
“Roe was egregiously wrong from the start,” the court said. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” said the opinion.
While stare decisis is important – protecting the interests of those who take action relying on a prior court decision, contributing to the actual and perceived integrity of the judicial process, etc. – there are actually quite a few precedents that have been overruled because they were wrongly decided, the most infamous being Plessy v. Ferguson, the 19th-century case that upheld the constitutionality of segregation on the basis of the “separate but equal” doctrine.
In Dobbs, said the opinion, “five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”
Roe erroneously found a right to abortion in the Constitution based on a nebulous right to privacy, said the court. And Casey upheld it based on the Fourteenth Amendment’s guarantee of liberty. The court affirmed what Byron White concluded in his dissent to Roe – that the alleged abortion right is not at all “deeply rooted” in the history or tradition of America, since most states before Roe had outlawed the practice – or at least severely restricted it.
Roe constructed a set of rules regulating abortion according to trimester. “The Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based,” said the opinion.
Casey upheld Roe by citing other cases having to do with the importance of personal autonomy (such as the right to marry persons of a different race), the court said, adding that in the December 1 oral arguments, the U.S. Solicitor General and the Center for Reproductive Rights similarly cited post-Casey cases like the Obergefell decision allowing same-sex marriage. But abortion is different, the court said, in that none of the other cases cited have to do with the taking of a human life.
The opinion takes aim at the concept of viability, the point at which Roe said states can prohibit abortion.
“The definition of a ‘viable’ fetus is one that is capable of surviving outside the womb, but why is this the point at which the State’s interest becomes compelling,” the opinion asks. “If, as Roe held, a State’s interest in protecting prenatal life is compelling ‘after viability,’ why isn’t that interest equally compelling before viability? Roe did not say, and no explanation is apparent.”
Viability is in part dependent on factors such as medical progress and the quality of care available to women in a big-city hospital as opposed to a rural medical facility, the court said. “If viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country,” the opinion asked.
Casey replaced Roe’s trimester scheme with an “undue burden” test. Cornell Law School explains that an undue burden arises “if the purpose or effect of the state restriction on abortion has placed a substantial obstacle on a someone seeking an abortion of a non-viable fetus.” But, the Dobbs opinion said, “the basis for this test was obscure. … The test is full of ambiguities and is difficult to apply.”
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the court concluded. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Associate Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan dissented from the ruling.
“Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives,” said their dissent. “Those legal concepts, one might even say, have gone far toward defining what it means to be an American. For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within ‘the reach of majorities and [government] officials.’ We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals — yes, including women — to make their own choices and chart their own futures. Or at least, we did once.”