There are many profoundly important statements from the U.S. Supreme Court in their landmark Dobbs decision overturning Roe and Casey.
Daily Citizen has scoured the decision and its concurrences to pick out the most foundational pro-life statements from the highest court in America, as well as those demolishing the faulty integrity and logic of Roe v. Wade itself. The Court, in Dobbs, referred to Roe as “egregiously wrong” law numerous times and carefully details its constitutional poverty. This court proclaims, “Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors…”
The majority starts its decision with this undeniable, historical recognition,
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State.
This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” p. 3
The majority continues,
Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.
We hold 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… p. 5
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” That is what the Constitution and the rule of law demand. p.6
The majority said essentially the same thing much later in their ruling,
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power” the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. p. 44.
Let us return to the survey, as it progressed.
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.
Roe, however, was remarkably loose in its treatment of the constitutional text. 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. p. 9
…we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion. p. 14-15
By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight. p. 16
The inescapable conclusion is 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. p. 25
Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise. p. 25-26
Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.
Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the underlying moral question… Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically [with dramatically less social stigma].
They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son. [emphasis added] p. 33-34
According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’” p. 38-39
The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. p. 46
Not only did this scheme [in Roe] resemble the work of a legislature, but 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. p.47
Roe’s failure even to note the overwhelming consensus of state laws … is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested … that the common law had probably never really treated post-quickening abortion as a crime. p. 48.
The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. What Roe did not provide was any cogent justification for the lines it drew. p. 49
All in all, Roe’s reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism. John Hart Ely famously wrote that Roe was “not constitutional law and g[ave] almost no sense of an obligation to try to be.” Archibald Cox, who served as Solicitor General under President Kennedy, commented that Roe “read[s] like a set of hospital rules and regulations” that “[n]either historian, layman, nor lawyer will be persuaded . . . are part of . . . the Constitution.” p. 53-55.
Regarding stare decisis, the doctrine that standing Court decisions should stand, the majority explains,
No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter …
In this case, five factors weigh strongly in favor of overruling Roe and Casey… p. 43
And of course, the best, strongest, most consequential words in the entire decision are found on p. 1 of the majority decision:
Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled…
Justices Thomas, Kavanaugh, and Roberts’ concurrences provide many important observations.
I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion.
[T]he idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical. Thomas concurring, p. 1
The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion. Thomas concurring, p. 2
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy], and Obergefell [same-sex “marriage]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents. Thomas concurring, p. 3
Nowhere is this exaltation of judicial policymaking clearer than this Court’s abortion jurisprudence. In Roe v. Wade, the Court divined a right to abortion because it “fe[lt]” that “the Fourteenth Amendment’s concept of personal liberty” included a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thomas concurring, p. 4-5.
Now, in this case, the nature of the purported “liberty” supporting the abortion right has shifted yet again. Respondents and the United States propose no fewer than three [new] different interests that supposedly spring from the Due Process Clause. Thomas concurring, p. 5
Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable. Thomas concurring, p. 6-7.
But, 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.” Thomas concurring, p. 7
The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. Kavanaugh concurring, p. 2
The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States. Kavanaugh concurring, p. 3
Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy). The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution. Kavanaugh concurring, p. 3
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. As Justice Rehnquist stated, this Court has not “been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.” Kavanaugh concurring, p. 5
After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. That issue will be resolved by the people and their representatives in the democratic process in the States or Congress. Kavanaugh concurring, p. 10
The Roe Court took sides on a consequential moral and policy issue that this Court had no constitutional authority to decide. By taking sides, the Roe Court distorted the Nation’s understanding of this Court’s proper role in the American constitutional system and thereby damaged the Court as an institution. As Justice Scalia explained, Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.”
Both sides on the abortion issue believe sincerely and passionately in the rightness of their cause. Especially in those difficult and fraught circumstances, the Court must scrupulously adhere to the Constitution’s neutral position on the issue of abortion. Kavanaugh concurring, p. 11
In my judgment, on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral. The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process. Kavanaugh concurring, p. 12
Justice John Roberts differed, concurring simply with the judgement of the majority, while disagreeing on various points.
I would take a more measured course. 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. Roberts concurring in judgement, p. 1-2
Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: 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. Roberts concurring in judgement, p. 7
The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case. Roberts concurring in judgement, p. 11
I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case. I therefore concur only in the judgment. Roberts concurring in judgement, p 12
The majority of the United States Supreme Court not only overturned both Roe and Casey, but left no doubt in any honest person’s mind how bankrupt they believe the constitutional reasoning behind them are. Dobbs not only repairs the travesty of abortion itself, but the raw judicial activism that brought them.
Dobbs is a dramatically rich and fundamentally important legal decision for the integrity of American jurisprudence. Its repercussions are broad and desperately needed.
