On Friday, June 24, the United States Supreme Court handed down a momentous decision. It was one that about which, frankly, I never thought I would write. In their decision, a majority of the justices struck down the decisions of Roe v. Wade and Casey v. Planned Parenthood, the decisions which codified the right to an abortion. There are five aspects of the decision that I would like to mention.
First, the facts of the case. In 2018, the Mississippi passed the Gestational Age Act. This law banned abortion procedures after fifteen weeks of pregnancy with some allowances for medical emergency or severe fetal abnormality. The law was challenged by Jackson Women’s Health Organization in 2018 and the case was heard by the high court in December, 2021.
Second, the make-up of the decision. The Court’s six Justices who are styled as conservatives joined together in upholding the Mississippi Gestational Age Act. The remaining Justices, styled as liberals, agreed to a dissenting opinion. It was a majority of five that overruled Roe and Casey, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice John Roberts agreed to uphold the law in question, but did not sign onto overruling the two prior decisions. This is as I predicted six months ago. The Chief Justice wrote, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” He wrote that a “dramatic and consequential ruling” would not the course of action to take given the Mississippi case.
Third, the reasoning of the majority. Justice Samuel Alito wrote the opinion for the majority of the Court. The majority held that the Constitution did not confer a right to abortion. In that, Justice Alito is correct. In fact, he challenged the dissenters to show that there was any Constitutional foundation. The term is not mentioned in the document and the original Roe decision relied on tortuous reasoning stemming from the right to privacy “discovered” by the Court in an earlier decision, Griswold v. Connecticut. The Casey decision, which upheld the core holding of Roe but substituted alternative reasoning for it, was taken by the court as a matter of stare decisis, the idea of upholding previous precedents.
Must a previous finding by the High Court be upheld because it came before a new case? Commentators have vociferously defended Roe by calling it precedent and saying that such a precedent should not be overruled. The majority opinion suggested, however, that the doctrine of precedent was not an “inexorable command.” Several decisions written by previous Courts have been overturned, such as Plessy v. Ferguson which established “separate but equal” in racial accommodations, by Brown v. Board of Education. Alito admitted that the Court was wrong in taking the decision in Roe and that the reasoning of those Justices was faulty.
The concern of the majority was restoring a Constitutional order to the issue of abortion. That required overturning the previous decisions and returning the decision taking power to regulate abortion back to the states, an authority which Roe and Casey took away.
Fourth, the dissent. The dissenting opinion, written by Justices Breyer, Sotomayor, and Kagan stated in its first paragraph that “Respecting a woman as an autonomous being, granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions,” that is, the ability to abort an unborn child. They call pregnancy something that a state can impose upon a woman by force. In a post-Roe world, they write, “young women will come of age with fewer rights than their mothers and grandmothers had.” One can see the emotion with which the dissenters wrote. However, their dissent lacks reasoning based on the Constitution, as they were challenged to do by the majority. Their dissent intoned that stare decisis was a central reason for continuing the regime established by Roe and Casey, as crucial foundation of the rule of law. But, one must ask, does upholding a bad precedent or striking it down provide a better foundation for the rule of law?
Fifth, the future. The Dobbs majority moved the hot potato of abortion into the court of politics and politicians. Does this mean that, with each state being able to proscribe or liberalize their abortion laws, that there will be a patchwork of regulations in the United States? The short answer is yes. State governments have already begun to move in both directions. Trigger laws are soon to come into force in some states because Roe was overruled. These laws would outlaw and heavily regulate abortion in various degrees. Other states are moving to codify Roe in their laws. It remains to be seen what the future of abortion jurisprudence will be.
Much attention in the media was cast on the concurrence written by Justice Clarence Thomas, suggesting that other rulings by the Court should be revisited. He wrote that cases based on the doctrine of substantive due process, such as Roe, were wrongly decided. Justice Thomas named such cases as Griswold, Lawrence, and Obergefell. The decision of the majority to overrule Roe and Casey should be used to examine those decisions as well. This was a step that the Court was not willing to take, but time and the cases which reach the Court through the pipeline of the judicial system may tell.