What Did They Actually Say? Dobbs v. Jackson Women’s Health Organization
With Roe v Wade overturned in what will probably turn out to be one of the most consequential court cases of the century, I have found my usual media sources around the issue… unsatisfying. So, I decided to read the entire court opinion myself. Having read 216 pages of legal writing and taken notes, I feel I ought to share with the class. With the caveat that I have no qualifications in this field besides literacy, here is a brief summary of the decision.
The Majority
The majority consisting of Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett decided to overturn Roe v Wade and Planned Parenthood v Casey, holding that abortion is not a constitutionally protected right. Their arguments were:
First of all, abortion is not “deeply rooted in American history and tradition” or essential to a “scheme of ordered liberty”. In fact, it has often been a crime. These standards are a reference to the 1937 case Palko v Connecticut which has been used in numerous cases since. Their analysis reaches back as far as Sir Edward Coke’s 17th century treatise Institutes of the laws of England, where abortion of a “quick” child was considered murder. This treatise has been cited in a number of cases, such as District of Columbia v Heller.
Second, it takes power out of the hands of elected officials and puts it in the hands of unelected judges, essentially legislating from the bench. The State has a rational interest in preserving fetal life, and the philosophy of life ought to be left up to the democratic process. The viability line for an abortion was arbitrary, and the court has no right to overrule legislative bodies based on their personal beliefs.
Third, “personal autonomy” applied too broadly would interfere with the ability of the legislature to regulate. By the same logic, bans on drugs and prostitution could be considered unconstitutional.
Fourth, the regulation of a medical procedure only one sex can undergo does not trigger heightened scrutiny under the Fourteenth Amendment’s Equal Protection Clause, unless it’s a mere pretext for discrimination. Since there is a rational interest to protect the life of the fetus, it is not merely a pretext.
Fifth, previous precedent regarding a right to privacy and autonomy (contraceptives, sex acts, marriage, involuntary surgery, etc) are inappropriate because abortion regards the destruction of an unborn human being.
Sixth, Casey’s “undue burden” standard was unworkable, meaning that it could not be applied consistently to different legal cases. Both Roe and Casey distorted many important and unrelated legal doctrines.
Seventh, there is not a concrete reliance on abortion as a right because it is generally unplanned. Reproductive planning can take immediately account of the change in law.
The Minority
The minority consisting of Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued against overturning Roe v Wade or Planned Parenthood v Casey and in favor of upholding abortion as a constitutionally protected right. Their arguments were:
First, the majority decision implies that women don’t have control over their own bodies, which is the most sacred right guarded by common law. The court has shown over and over that there is a realm of liberty the government may not enter, especially relating to bodily integrity and family life.
Second, the decision has terrible consequences for women and opens up challenges to other fundamental constitutional rights. Laws may be passed challenging the right for women to take medications in their own homes, general reproductive freedoms, freedom of speech by criminalizing information or funding for out of state abortion services, and health complications including death due to forced pregnancy.
Third, women have relied on the availability of abortion to structure their relationships and plan their lives. The ability of women to participate equally in the life of the Nation has been facilitated by their ability to control their reproductive lives.
Fourth, Roe v Wade set precedent for numerous unrelated cases, and is based in precedents regarding rights to marriage, procreation, contraception, family relationships, and child rearing. Overturning Roe means destabilizing that entire lineage of precedent and threatens overturning other rights.
Fifth, a government controlling all private choices is incompatible with freedom. The constitution puts some issues off limits to majority rule. The framers defined rights in general terms to allow for a dynamic constitution with an expanding sphere of liberty. The court has restricted the power of government to interfere with a person’s medical decisions or compel her to undergo medical procedures or treatments. There are few greater incursions on a body than forcing a woman to complete a pregnancy and give birth.
Sixth, “people” did not ratify the Fourteenth Amendment, men did. If “tradition” is necessary to uphold a new right, then rulings on interracial marriage, contraception, the right not to be sterilized without consent, etc. also ought to be overturned.
Seventh, there is nothing unworkable about Casey’s “undue burden” standard. The majority decision discards a known, workable, and predictable standard in favor of something novel and probably far more complicated. It forces the Court to wade further into hotly contested issues.
Eighth, nothing has changed factually or legally to justify overturning Roe. The only thing that has changed is the membership of the court. This precedent leaves the law vulnerable to the preferences of unelected justices. It makes radical change too easy and too fast.
Clarence Thomas
Concurring with the majority decision, Thomas argues not only against the constitutional right to an abortion, but any such rights not explicitly listed in the constitution. He argues that:
Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.
In future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” In practice, the Court’s approach for identifying those “fundamental” rights “unquestionably involves policymaking rather than neutral legal analysis.”
Brett Kavanaugh
Concurring with the majority decision, Kavanaugh argues that although the constitution leaves room for new rights not explicitly listed in the constitution, abortion deals with an irreconcilable conflict between the interests of a pregnant woman and the interests in protecting fetal life. The court does not have a right to pick or legislate the winners of this conflict. Notably, unlike Thomas, he asserts that the majority decision does not overturn other precedents. He argues:
The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process. May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause.
The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process. 26 States explicitly ask the Court to overrule Roe. The Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition.
I agree that constitutional rights apply to situations that were unforeseen in 1791 or 1868 — such as applying the First Amendment to the Internet or the Fourth Amendment to cars. Moreover, the Constitution authorizes the creation of new rights — state and federal, statutory and constitutional. The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process.
Chief Justice John Roberts
Concurring with the judgement but not the decision to overturn previous precedents, Roberts argues that although the viability line established in Roe v Wade was arbitrary and should be discarded, the court should not have overturned a woman’s constitutionally protected right to an abortion. He argues:
A woman’s right to terminate a pregnancy should extend far enough to ensure a reasonable opportunity to choose, but need not extend any further. Roe set forth a rigid three-part framework anchored to viability, which more closely resembled a regulatory code than a body of constitutional law. It came out of thin air.
In Gonzales v Carhart, the Court recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Statutes passed in a number of jurisdictions forbid abortions after twenty weeks of pregnancy, premised on the theory that a fetus can feel pain at that stage of development.
The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system. Its dramatic and consequential ruling is unnecessary to decide the case before us. The difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”
Our precedents in this area ground the abortion right in a woman’s “right to choose” and protect “the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” The clear path to deciding this case correctly is to recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.
Summary
As I see it, the most important argument for the majority and Kavanaugh is that abortion is a special case because of the rights of the fetus, which the government has an interest in protecting. Unlike something like gay marriage, abortion may infringe on the right to life, liberty, and the pursuit of happiness of another “person”. The court doesn’t have the authority to decide when personhood begins, so it should leave it up to the states.
Meanwhile, the minority sees this decision as not only a disaster for women, but a turning point that may lead to the destruction of other fundamental rights not listed explicitly in the constitution, namely those connected with privacy. It opens up a can of worms that may lead to litigation of constitutional rights like the right to travel to other states to seek an abortion. Rather than being a neutral legal decision, the minority sees it as opening the door to politicization of the court.
Interestingly, Thomas seems to agree with the minority that the decision implies that rights previously determined by the court but not explicitly listed in the constitution are illegitimate and ought to be repealed. Roberts agrees with the majority that the standards set in Roe v Wade were judicial overreach, but agrees with the minority that the decision to overturn that precedent rather than reform it to be more open as another kind of overreach. He agrees that the Mississippi law banning abortion after 15 weeks is constitutional, but still seems to believe in a woman’s constitutional right to choose whether to have an abortion.
