A Summation of Dobbs v. Jackson Women’s Health Organization, 597

With much controversy, protests, and violence erupting across America due to the overturning of Roe v. Wade, I felt it was important to read the actual Supreme Court brief, Dobbs v. Jackson, that gives the basis for this most momentous decision. Because most people will not have the time to read such a lengthy legal document, I have decided to dedicate this blog to the high points of the brief, most of which can be found at the Justia website, sited below. The following are all direct quotes from the court’s summary.  I provide no commentary.

One addendum: For ease in reading, I have deleted supporting court cases referenced by Justice Alito.

To be an informed citizen on such a controversial court decision, let me encourage you to take 15 minutes to read the following summary of Dobbs v. Jackson.


The Summary

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Pp. 8–79.

The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion.  Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider. Pp. 8–32.

(1) First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right.  Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications. Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures. Pp. 9–11.

(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.”  The term “liberty” alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution.

Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. 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. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. 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.

Respondents’ argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,” but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt.

Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right.  Roe termed this a right to privacy, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Ordered liberty sets limits and defines the boundary between competing interests.  Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.”  But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30.

(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much.  Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. Pp. 30–32.

The Court’s cases have identified factors that should be considered in deciding when a precedent should be overruled.  Five factors discussed below weigh strongly in favor of overruling Roe and Casey. Pp. 39–66.

(1) The nature of the Court’s error. Like the infamous decision in Plessy v. FergusonRoe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.  Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe. Pp. 43–45.

(2) The quality of the reasoning. 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’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee, and did not explain why the sources on which it relied shed light on the meaning of the Constitution…None of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.” When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with,” among other things, “the relative weights of the respective interests involved” and “the demands of the profound problems of the present day.”  These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests.

The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem with any such argument is that viability has changed over time and is heavily dependent on factors—such as medical advances and the availability of quality medical care—that have nothing to do with the characteristics of a fetus.

When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holdingbut pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. The controlling opinion criticized and rejected Roe’s trimester scheme, and substituted a new and obscure “undue burden” test.  Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent. Pp. 45–56.

(3) Workability. Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.  Casey’s “undue burden” test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the “undue burden” test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey’s new rules surfaced in that very case. The experience of the Courts of Appeals provides further evidence that Casey’s “line between” permissible and unconstitutional restrictions “has proved to be impossible to draw with precision.”

(4) Effect on other areas of law.  Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. Pp. 62–63.

(5) Reliance interests.  Overruling Roe and Casey will not upend concrete reliance interests like those that develop in “cases involving property and contract rights.”  In Casey, the controlling opinion conceded that traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” Instead, the opinion perceived a more intangible form of reliance, namely, that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”  Ibid.  The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women as well as the status of the fetus. The Casey plurality’s speculative attempt to weigh the relative importance of the interests of the fetus and the mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.”

The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. Pp. 63–66.

Casey identified another concern, namely, the danger that the public will perceive a decision overruling a controversial “watershed” decision, such as Roe, as influenced by political considerations or public opinion. But the Court cannot allow its decisions to be affected by such extraneous concerns. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law. The Court’s job is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. Pp. 66–69.

Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”  That applies even when the laws at issue concern matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.  Id., at 320.

Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted interest in “protecting the life of the unborn.” These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail. Pp. 76–78.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.  Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives. Pp. 78–79.

945 F.3d 265, reversed and remanded.

Alito, J., delivered the opinion of the Court, in which Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J., and Kavanaugh, J., filed concurring opinions. Roberts, C. J., filed an opinion concurring in the judgment. Breyer, Sotomayor, and Kagan, JJ., filed a dissenting opinion.” https://supreme.justia.com/cases/federal/us/597/19-1392/

Pastor Steve