By now everyone has heard about or read a headline saying that the United States Supreme Court overturned Roe v. Wade, the 49-year old decision that created a constitutional “right” to abortion out of whole cloth. In Dobbs v. Jackson Women’s Health Organization, the high court on Friday not only threw out Roe, but also its 1992 progeny, Planned Parenthood v. Casey, which modified Roe while still reaffirming the underlying “right.”
At issue in Dobbs was the constitutionality of a 2018 Mississippi law prohibiting abortion (with certain limited exceptions) after 15 weeks gestation. Challenged in the federal courts, the law was struck down because of Roe and Casey. Casey in particular held that until the viability of the preborn child (currently considered to be around 24 weeks gestation), a state had essentially no defendable interest in prohibiting abortion.
In the Dobbs majority opinion, written by Justice Samuel Alito, six justices combined to uphold the constitutionality of the Mississippi 15-week law. There was a slight difference in the reasoning the court used to get there, with five justices – Alito, Thomas, Kavanaugh, Gorsuch and Barrett – agreeing that Roe “was egregiously wrong from the start,” expressly overturning Roe and Casey.
“We hold that Roe and Casey must be overruled,” Alito’s majority opinion stated. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”
Chief Justice John Roberts, however, concurred only in the judgment that Mississippi’s law was constitutional. He did not join with the majority in concluding that Roe and Casey ought to be overruled.
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases,” Roberts wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
But Roberts’ reservations about overturning Roe and Casey don’t affect the constitutional bottom line. Roe and Casey have deservedly been sent to the ash heap of history by the Dobbs decision.
Although Alito’s opinion essentially followed the leaked draft reported by Politico on May 2, he did add portions addressing the arguments of the Chief Justice as well as the three dissenters, Justices Breyer, Kagan and Sotomayor.
Justices Clarence Thomas and Brett Kavanaugh each wrote separate concurrences. Kavanaugh’s contained some notable and quotable language on the duty of the court in cases like this.
“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,” he wrote. “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.’”
The three dissenters wrote a joint opinion, which was replete with commentary on the damage this decision was going to do to women, without mentioning the damage Roe and Casey have already done to the 63 million aborted babies since 1973. The 60-page dissent’s closing line is representative of that:
“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote.
The dissent also failed to note that over half of all pro-life Americans are women.
The majority opinion also outlined the legal test – “rational basis review” – for courts to use when evaluating laws regulating abortion, now that Roe and Casey are gone. All that legislative bodies need to justify most laws when challenged in court – which now includes abortion – is a “legitimate interest” in doing so, the majority opinion stated. The court then suggested several possibilities from cases already in the courts:
“These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”
It’s a new day, indeed, and today’s decision is not simply a historic victory for life, but for the democratic process as well. Judges should not be making laws or creating rights, and this court stepped up and recognized that. The Founders would be pleased.
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