Roe is Dead, Long Live SCOTUS: Dobbs v. Jackson
By Sarthak Gupta
On May 2, 2022, an initial draft opinion written by Samuel Alito J. of the Supreme Court of the United States (SCOTUS) in Dobbs v. Jackson Women’s Health Organization (Dobbs) was leaked. It warned that the right to abortion as recognized in Roe v. Wade (Roe) was going to be overturned. A month later, on June 24, 2022, SCOTUS delivered its final long-awaited judgment, overturning Roe and Planned Parenthood v. Casey(Casey), thereby eliminating the federal standard protecting the right to abortion. In Casey, SCOTUS reaffirmed Roe and adopted the undue burden test, under which the court has sustained restrictions on abortion. This article delves into the Dobbs analysis and its consequences and argues that the conservatives’ approach to Dobbs might lead to the downfall of American constitutionalism.
In Dobbs, Jackson Women’s Health Organization challenged the Mississippi Gestational Age Act, which prohibits all abortion after fifteen weeks of pregnancy with only a few exceptions. The Circuit Court held the act unconstitutional, leaving the appeal to SCOTUS, which accepted the case on one sole issue: “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Alito J., writing for the majority, overruled forty-nine years of precedent establishing the right to abortion and adopted a strictly originalist and maximalist approach. His rationale for overruling Roe and Casey lay in the premise that the right to abortion neither flows from the constitutional text nor is implicitly protected by the due process clause. To reach this conclusion, the majority refers to Timbs v. Indiana, to hold that the right to abortion is not “deeply rooted in the American's history and tradition” and, further, cannot be termed as an essential characteristic of “ordered liberty.” Terming the historical scrutiny of Roe as “constitutionally irrelevant” and “plainly incorrect,” the plurality conducted an in-depth historical examination to conclude that, far from being constitutionally protected, abortion was a criminal act under the common law, at least some stages of pregnancy and was regarded as unlawful.
Alito J. rejected the historical evidence that abortion before “quickening” (an outdated term for the stage in pregnancy when movements of the fetus can be felt) was prominently practiced, and legal, in the common law. Alito J. observed that American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. Thus, by the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. Alito J. remarked that Roe either ignored or misstated American history, and subsequently, Casey declined to reconsider Roe’s faulty historical analysis. SCOTUS further held that abortion cannot be justified on the rationale for broader rights of dignity and autonomy.
Astonishingly, SCOTUS disregarded its profound jurisprudence of privacy rights formulated in Roe and Caseyas “inapposite,” on the rationale that previous precedents of privacy rights did not deal with significant moral issues i.e., the question of the life of an unborn child. The plurality went a step further to showcase that its overruling was akin to the famous decisions of Brown, West Virginia, and Parrish. Roe and Casey declared a “winning side” in the people's debate on regulating abortion and “short-circuited the democratic process” by denying the state its ability to secure fetal life.
In a separate opinion, Roberts CJ. adopted a middle path for upholding the Mississippi law, while disapproving of the overruling of Roe and Casey. Calling for a "narrower” approach and repudiating the “misguided viability line,” he emphasized that the SCOTUS granted review solely for the issue regarding the constitutionality of a pre-viability prohibition on elective abortion. While emphasizing principles of judicial restraint and stare decisis, he highlighted that in its petition, Mississippi explicitly claimed that the issues presented do not require overruling Roe and Casey. Roberts CJ. held that in Roe, the Court chose to address both issues in one opinion; first, it recognized a right to “choose to terminate a pregnancy” under the Constitution, and then, having done so, it explained that a line should be drawn at viability such that a State could not proscribe abortion before that period. Roberts CJ. argued that the viability line was the separate rule fleshing out the metes and bounds of Roe’s core holding, thus, instead of overturning Roe completely, just excise that additional rule and only rule from American jurisprudence.
The plurality's reasoning in Dobbs is egregious in itself because Roe and Casey did not prohibit states from regulating abortion to secure fetal life. Rather, they created an effective balance to protect the interests of both the pregnant individual and the state. In Dobbs, SCOTUS would not have gone this far if the aspects of a woman’s agency, decisional autonomy, privacy, and dignity were half as important as the necessity of having a “democratic process” of denying a fundamental right to abortion and leaving the pregnant individual at the mercy of political majorities.
The majority, while insisting that the reasoning of Roe and Casey has no “grounding” in constitutional text, history, or precedent, forgot that a Constitution is a living document, not a mere combination of articles frozen in the timeframe of its enactment. Adopting such logic for the analysis of constitutional issues would lead to obvious conundrums and impracticalities. During the enactment of the Constitution, not only was slavery legal, but women could not even think of voting. Constitutional interpretation cannot be sans constitutionalism.
The consequences of the Dobbs decision are profound. It will affect the autonomy, health, and socio-economicstatus of American pregnant individuals, and will go on to have an overarching effect on American constitutionalism. Dobbs' fatal approach lays the groundwork to undo imperative rights protection across the board, effectively putting America on a regressive path antithetical to the idea of a modern liberal constitution. The notions of liberty and dignity entail a broader and evolutionary interpretation in favor of the historically deprived and prejudiced citizenry, instead of the ad hoc history-centric one adopted in Dobbs.
Justices Breyer, Sotomayor, and Kagan wrote a strongly worded dissent against the plurality’s rationale in Dobbs for leaving the issue of abortion to the states. In their dissent, the three liberal judges hold that Dobbs' decision questioned the very legitimacy of SCOTUS. In Casey, SCOTUS ruled that the public should never conclude that their constitutional rights were precarious and that a new majority could revoke their rights merely based on numbers. Thereby, in overruling Roe and Casey, SCOTUS betrayed its guiding principles. The dissenters expressed their discomfit and wrote that the “work isn’t finished, yet begun.” The dissenters indicated that the majority’s approach paves the way for a future court to challenge not only the existence of a right to privacy and autonomy, but also the very basic notion of substantive due process.
The constitutional right to abortion, which originates from Roe and Casey, forms a component of the same constitutional framework as the other protections, including contraception (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges). These three landmark decisions stem from the doctrine of the due process clause, which confers substantive rights and thus expresses American constitutionalism. Thomas J. separate concurrence reiterated his restrictive view that the due process clause of the Fourteenth Amendment only guarantees process and that there is no scope for securing any substantive right(s) under the same. By asking to review SCOTUS’ precedents including Griswold,Lawrence, and Obergefell, he summoned a conservative counterrevolution and reinforced constitutional radicalism, both of which might result in the endangerment of SCOTUS’s legitimacy.
Dobbs undermines not only SCOTUS’s legitimacy, but also undermines American constitutionalism by basing the legality of a fundamental right on a narrow interpretation of history and originalism. The plurality’s extreme stance in Dobbs paves the way for absolutist abortion bans without any exception in cases of rape, incest, or imminent death of a pregnant individual. By combining the archaic historical basis approach with the most deferred standard of rational basis to scrutinize abortion laws, SCOTUS makes it nearly impossible for future courts to strike down such extreme abortion bans.
The overarching ripple effect of this decision will almost certainly lead to an absolute or partial abortion prohibition in the majority of states and will aggravate the serious implications for health and integrity, particularly in states with higher rates of maternal mortality and morbidity. Inequalities in law enforcement always have a significant detrimental effect on marginalized communities and people of color. The implementation of abortion restrictions is likely to reflect a similar approach. As the dissenters opined in Dobbs, “either the mass of the majority’s opinion is hypocrisy or additional constitutional rights are under threat. It is one or the other.” Only time will tell how the Dobbs conservative rationale unfolds for American constitutionalism's future.
Sarthak Gupta is a B.A.; L.L.B student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.
Supreme Court of the United States is by Phil Roeder and is licensed under CC BY 2.0
