SCOTUS' - Overruling Roe v. Wade

Krishnapriya Sreekumar
Jun 26, 2022
10 min read

Updated: Jul 4, 2022

The landmark 1973 judgment that granted constitutional protection to the right to abortion in the United States has been struck down by the Supreme Court.

Image Credits: The Salt Lake Tribune

Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women's Health Organization et al. (Certiorari to the United States Court of Appeals for the Fifth Circuit, Decided on June 24 2022), [hereinafter referred to as 'Dobbs'] To access the full judgment, click here

Overview

On Friday, June 24, 2022, The Supreme Court of the United States [SCOTUS] overturned the 1973 judgment of Roe v. Wade [Roe] by a 6-3 majority.

Roe recognized abortion as a constitutional right, granting it federal constitutional protection. Additionally, it struck down laws that illegalized abortion in several states of the United States [US], apart from ruling in favour of abortions until a foetus can survive outside the womb (known as foetal viability). (which was around 28 weeks/7 months at the time; however, newer studies suggest that the threshold is not at 23 or 24 weeks/6 months or less.) [1]

Click here to read Roe v. Wade

The present case, Dobbs, apart from striking down Roe, also incidentally overturned the Court's ruling in Planned Parenthood v. Casey (1992), decided subsequent to the verdict in Roe. Casey emphasized that States cannot enact abortion restrictions in a manner that poses an 'undue burden' on the person undergoing the abortion. [2]

SCOTUS' ruling in Dobbs favoured the State of Mississippi, wherein the State sought to invalidate Roe and outlaw nearly all abortions at and after a 15-week gestation period. [3]

"The law at issue in this case, Mississippi's Gestational Age Act...contains this central provision: "Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks." §4(b).14".

"The Act defines "gestational age" to be "the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman." §3(f )"

The Respondents were an abortion clinic, Jackson Women's Health Organization, and one of its doctors. On the day of the enactment of the concerned Act, the respondents filed a suit in the Federal District Court against various officials of Mississippi, alleging that the Act violated SCOTUS' precedents that established a constitutional right to abortion. [See Jackson Women's Health Org. v. Currier, 2019] [4]

The Petitioners in the present case argued that the rulings of Roe and Casey were 'wrongly decided and that the Act is constitutional because it satisfies rational basis review'. On the other hand, the Respondents argued that allowing the State of Mississippi to ban pre-viability abortions 'would be no different than overruling Casey and Roe entirely.' [5]

Opinion of the Court

In light of the arguments raised, the Court primarily began assessing the critical question of 'whether the Constitution, properly understood, confers a right to obtain an abortion.'

To answer said question, the Court examined the following:

a. The standard that the Court's cases have used in determining whether the Fourteenth Amendment's reference to liberty protects a particular right.

b. Whether the right at issue is rooted in the Nation's history and tradition

c. Whether it is an essential component of what is described as 'ordered liberty.'

d. Whether the right to obtain an abortion is part of a broader entrenched right supported by other precedents [6]

On behalf of the majority, Justice Samuel Alito observed that Roe and subsequent decisions reaffirming the ratio laid down in Roe were 'egregiously wrong,' the arguments 'exceptionally weak' and 'so damaging' that they amounted to 'an abuse of judicial authority.'

"Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided"

"Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation" "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences" [7]

In reference to the list mentioned above of considerations the Court examined in pursuit of the question 'whether the Constitution, properly understood, confers a right to obtain an abortion,' the Court observed the following:

"The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text" . It was additionally observed that Roe was 'remarkably loose in its treatment of the constitutional text' as "It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned." [8]

Additionally, the Court held that the Fourteenth Amendment does not protect the right to abortion [9] and that "a right to abortion is not deeply rooted in the Nation's history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973" [10]

Furthermore, the Court opined that any attempt to justify abortion by appealing to a broader right to autonomy and the right to define one's 'concept of existence' proves too much. Such levels of generality may license fundamental rights to illicit drug use, prostitution, and the like. The underlying principle is that none of these rights has any claim to being 'deeply rooted in history' [11]

In his concluding remarks, Justice Alito emphasized that the Court's decision is not to be misunderstood or mischaracterized as it merely concerns the constitutional right to abortion and no other right. The present judgment ought not to be understood as affecting any other precedent that does not involve the right to abortion. [12]. However, in his concurring statement, Justice Clarence Thomas observed a rather contrary suggestion which shall be discussed later.

In the very essence of Dobbs, the Court is not taking away the federal constitutional protection of one's right to abortion. The Court opines that Roe mistakenly interpreted the Constitution as the Constitution had never granted such protections in the first place and thereby, in the present case, the Court clarifies the position of the Constitution vis-a-vis the right to abortion, and incidentally, privacy and bodily autonomy.

Dissenting Opinion

Justices Breyer, Sotomayor, and Kagan provided the dissenting opinion.

They observed that the majority overruled Roe and Casey merely because they despised them, and incidentally have now voted to discard them. [13] They opined that the opinion of the majority says that 'from the very moment of fertilization, a woman has no rights to speak of'

"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. Today's Court, that is, does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life" [14]

"Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”...But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions."

The dissenting judges further wrote that the Court has departed from its obligation to faithfully and impartially apply the law [15] and opined that the majority had substituted the rule of law with a 'rule by judges' [16].

"Today's decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State's will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment's terms, it takes away her liberty. Even before we get to stare decisis, we dissent."

In their concluding remarks, the dissenting judges wrote:

"With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent"

The Aftermath of Dobbs

The controversial ruling in Dobbs has left the legal status of abortions in the hands of States who are now empowered to draft their own laws pertaining to abortions and the rights and restrictions that follow. And they may do so without the 'shackles' of Roe and Casey that protected the rights of the person getting the abortion.

According to Planned Parenthood: "The ruling will have a ripple effect, spreading abortion bans across the United States. About half the states in the country could move to wipe out abortion access. Some of these states have policies that ban abortion immediately. Others are led by lawmakers who are hostile to abortion and have a history of passing abortion restrictions."[17]

Thousands of protests have sparked across the country following Dobbs and the Court's decision in New York State Rifle and Pistol Association et al. v. Bruen et al., which eased gun regulations in the United States.

The decision was also met with heavy criticism by various personalities, including the President of the United States [POTUS], Joe Biden; "the Supreme Court has made some terrible decisions," and Michelle Bachelet, the UN High Commissioner for Human Rights "This decision strips such autonomy from millions of women in the US, in particular, those with low incomes and those belonging to racial and ethnic minorities to the detriment of their fundamental rights.". However, others voiced support for SCOTUS' decision. Notably, Illinois Republican Mary Miller, while addressing a rally, stated that the decision in Dobbs was a 'historic victory for white life.'

According to the Guardian: "At least 26 states are expected to ban abortion immediately or as soon as practicable". After Dobbs, Utah's law that banned almost all abortions came into effect. Ohio's "Heartbeat Bill", which bans most abortions at the first detectable foetal heartbeat, also came into effect. In Alabama and Arkansas, abortions are wholly banned in any state of pregnancy, except when such is necessary to protect the mother's life in a medical emergency. In many states, getting an abortion is a criminal offence met with penal punishments, including a prison sentence. The Guardian also outlines State laws that could go into effect with Roe overturned. [18]

On the other hand, States where abortions are entirely legal, include Alaska, California, Colorado, Nevada, New York, Washington, Illinois, Hawaii, and Connecticut, among others.

The Effect of Dobbs

Dobbs does not make abortions illegal in the United States (as that is a question left to State Lawmakers); it merely strips them of their constitutional protections, making abortions far more dangerous, especially for women from poor or marginalized communities. [as rightfully observed by Alexandria Ocasio-Cortez, US Representative]. It is pertinent to note that Roe and Casey weren't just about the right to abortion but also the right to privacy and bodily autonomy. Although the decision in Dobbs does not explicitly illegalize or 'regulate' abortions, it surely has provided lawmakers with an exclusive ticket to do just that.

According to Planned Parenthood: "By overturning Roe v. Wade, the Supreme Court erased nearly 50 years of precedent. They took away our power to make our own medical decisions, and they gave that power to lawmakers. The Court's decision most harms Black, Latino, Indigenous, and other people of colour — communities for whom systemic racism has long blocked access to opportunity and health care". Planned Parenthood is still fighting to support persons seeking abortions. [19]

Many activists have called out politicians and lawmakers for the irony in their 'childcare' or 'pro-life' laws, noting that if they genuinely cared about the same, there would be universal healthcare, free education and daycare, universal childcare, and paid family & medical leave, among others.

I find it relevant to cite an incident from San Antonio, Texas. There were patients waiting in the lobby of Alamo Women's Reproductive Services Clinic amidst the post-Roe debacle when the attorneys of the Clinic advised them to stop all abortion procedures. The Clinic's administrator, whilst addressing the patients, noted that "your geographical location affects your bodily autonomy" [20]

Followingly, it is pertinent to note that persons may travel to other states to seek abortions; however, this would entail travelling miles to seek a right that should be considered a basic understanding of one's bodily autonomy and privacy. This, as mentioned above, would affect women of poor and marginalized communities the most in addition to persons belonging to ethnic and racial minorities. This includes Native Americans and Persons of Color who, apart from the discrimination they face over and above this debacle, will face more persecution owing to a system of racial oppression that has significantly strained their access to healthcare and other basic facilities. Utah Republican state senator Daniel McCay stated that it would be wrong for the women of Utah to seek abortions in neighbouring states, but he had no immediate plans to stop them from doing so.

The effect of Dobbs is one that is alarming in light of one's right to bodily autonomy and privacy, leaving the fate of many women and persons seeking abortions, in the hands of lawmakers. However, what is even more alarming is that in his concurring opinion, Justice Clarence Thomas wrote: "For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” [21].

For context, Griswold v. Connecticut garnered married couples the right to buy and use contraceptives without government restriction. Lawrence v. Texas ruled that criminal punishments for sodomy are unconstitutional and Obergefell v. Hodges observed same-sex couples' fundamental right to marry.

Although the dissenting judges called out such a suggestion by Justice Clarence as being contradictory to Justice Alito's concluding remarks [at 12], one can only hope that future decisions of the SCOTUS follow the doctrine of stare decisis, as rightfully observed by the dissenting judges [22].