The now infamous draft majority opinion in Dobbs v. Jackson Women’s Health Organization, leaked Monday, will overturn Roe v. Wade and Planned Parenthood v. Casey in a rich, bold, and comprehensive manner.
The law at the center of the Dobbs case is a Mississippi statute prohibiting abortion after 15 weeks of pregnancy. Jackson Women’s Health Organization—the respondent of the case—is an abortion center in Mississippi. Respondents argued that no compromise measures were possible regarding the statute and prior abortion precedent. Roe and Casey either stand or fall.
This is the occasion for the Supreme Court’s ruling. Justice Samuel Alito’s opinion is a thorough cleaning of the stables of the court’s 20th-century abortion jurisprudence. Virtually every conceivable argument, fact, and shibboleth launched by pro-abortion legal forces has been considered, evaluated, and rejected.
We have lived under the Roe and Casey regime together for 49 years. Any court that would bury this legacy faces the insistence that it acted out of political motives instead of fidelity to the Constitution. The majority opinion surmounts this crisis of legitimacy that always stood before any court that would overturn the nearly unlimited abortion license first launched by Roe and extended by Casey.
Indeed, one obstacle the Supreme Court faces is the arrogance of the Casey opinion itself, which upheld the central viability (ability to survive outside the womb) holding in Roe while refusing to defend the actual constitutional reasoning in the opinion. The Casey plurality ruled as it did based on stare decisis, i.e., the proclaimed need to adhere to a settled abortion jurisprudence to preserve the reliance interests of the public and the legitimacy of the court.
The Casey opinion then imperiously called on both sides to lay down their arguments and accept the court’s ruling for the good of the country. The pro-life opposition was expected to take its defeat and go home. But neither side accepted the court’s holding in Casey nor its admonition to lay down their arms. Judicial imperialism has a way of opening controversy even further, not tamping it down.
Undoing the falsely constructed right to abortion requires an opinion that reveals the dishonesty and corruption embedded in the reasoning of Roe and Casey. The majority opinion accomplishes this goal. In doing so, the Dobbs opinion enlightens the public’s understanding of why returning the issue to legislative deliberation is more likely to foster civic peace because abortion reaches settlement through politics.
The Supreme Court states, “It is time to heed the Constitution and return the issue to the people’s elected representatives.” Of course, there remains the greater consideration of the lives that will surely be saved by this new constitutional process rooted in federalism, deliberation, and legislative settlement.
The opinion evaluates the ground of the abortion right in the text of the Constitution and then turns to the reasoning announced in Roe and Casey for this right. The court further weighs the fiat rules Roe provided for the regulation of abortion, and then the opinion turns to the issue of stare decisis announced by the Casey opinion as the ultimate basis for its ruling.
Here the Dobbs’ majority demolishes the stare decisis analysis used by the Casey decision to uphold abortion. At each turn of Alito’s opinion, the term purgation comes to mind as he plucks out the errors in reasoning that have governed us for far too long on abortion.
The opinion holds that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” The right to an abortion, the court observes, is nowhere stated in the constitutional text. Those who proclaim it must “show that the right is implicit in the constitutional text.”
The problem for the Roe opinion is that “it is remarkably loose in its treatment of the constitutional text. It held that the right to abortion, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Such right to privacy was then built on a constitutional potpourri of rights in the First, Fourth, Fifth, Ninth, and 14th Amendments.
And, as if this was not enough, Roe “left open at least three ways in which some combination of these provisions could protect the abortion right.” Roe was a sheer act of judicial will.
Casey did not use Roe’s constitutional grounding but rooted abortion in the word “liberty” in the due process clause of the 14th Amendment. Alito turns to substantive due process analysis stating that it extends to two sets of rights: those listed in the first eight amendments to the Constitution and to fundamental rights “that are not mentioned anywhere in the Constitution.”
The “bold” assertion in Casey is that abortion is protected as a fundamental right, and that means abortion meets the twofold test of being “deeply rooted in [our] history and tradition” and that it is essential to our “nation’s scheme of ordered liberty.”
The Dobbs’ opinion says, “we must ask what the Fourteenth Amendment means by the word ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the 14th Amendment does not protect the right to an abortion.” The holding here is teased by the majority with reference to Abraham Lincoln’s observation: “We all declare for Liberty; but in using the same word we do not all mean the same thing.”
The opinion investigates statutory and common law history in America for evidence of abortion as a positive or legal right. The Roe opinion found such evidence, concluding that abortion was widely permitted in America under common law and that statutory restrictions on abortion that emerged in the 19th century were not attempts to protect fetal life but restraints on women for social morality.
This version of legal history has long been criticized by scholars. The majority opinion amply sets the record straight regarding common and statutory law prohibitions on abortion. Simply put, “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.”
What about common law? “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.” Common law as decided by state courts followed this rationale, “until a wave of statutory restrictions in the nineteenth century expanded criminal liability for abortions.”
And what about the state statutory law regarding abortion? The majority notes that “abortion had long been a crime in every state” prior to Roe. When the 14th Amendment was passed, whose lineage respondents implore to overturn the Mississippi statute, “three quarters of the States had made abortion a crime at any stage of pregnancy, and the rest would soon follow.”
The court flatly pronounces: “Roe either ignored or misstated this history, Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.”
What follows is a detailed rebuttal of how common law decisions from the 13th century in England through a continuous line of judgments in American state courts strongly regulated abortion. The Supreme Court also provides state-by-state evidence of overwhelming statutory restrictions on abortion prior to Roe.
The court that decided Roe misstated this history to root abortion as a fundamental right in our “history and tradition.” Indeed, “The inescapable conclusion is that a right to an abortion is not deeply rooted in our 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 to 1973.” The court issues one final stinger on this point, “Respondents and their amici have no persuasive answer to this historical evidence.”
The Dobbs opinion squarely deals with the perils and problems that substantive due process launches when it creates under-specified rights that are only loosely tied to constitutional text. Both Roe and Casey said abortion was “an integral part of a broader entrenched right.”
For Roe, that was privacy. For Casey, it was the right to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Dobbs thankfully buries the infamous “Mystery Passage” in Casey that further elucidates said dignity and autonomy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The majority notes that one can make one’s thoughts known on “existence,” “meaning,” “the universe,” and “the mystery of human life,” which may correspond to a rich understanding of liberty, but “it is certainly not ‘ordered liberty.'” Roe and Casey’s holdings having no basis in history or tradition, nor in Supreme Court precedent.
The lines those opinions struck between the rights of the mother and the state’s ability to protect “potential life” must fall as a matter of “ordered liberty,” which does not dictate the outcomes reached in those cases. The interests between the states and women can be sorted in numerous ways and states must be free to do that.
The opinion then turns to stare decisis, which the Casey court in prominent but misguided fashion staked its authority to when it upheld Roe, even though it declined to defend the opinion’s constitutional theory, its trimester and viability regulatory framework, which led the Casey opinion to insert its new arbitrary standard of “undue burden” to regulate the constitutionality of abortion restrictions.
The courts have struggled to define and apply the “undue burden” standard, which has further led the court down an arbitrary road of decision-making regarding abortion.
The opinion holds “five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the workability of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”
I will not go into each element but will summarize the analysis. The error in Roe and Casey and its deficient reasoning have been abundantly exposed in earlier parts of the opinion.
The opinion provides further specification explaining “Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of law of little importance to the American people.”
Roe and Casey announced an abortion right without a clear connection to constitutional text and then proposed regulatory schemes rooted in viability of the fetus and with Casey an “undue burden” analysis for regulation. Both systems were compelled by nothing other than judicial contrivance with no past precedent guiding them.
Roe’s viability analysis is thoroughly defenestrated by Dobbs, which notes that it builds on distinctions that are a moving target. The viable fetus turns on the advance of medical technology, which permits fetal life to survive at earlier stages of pregnancy, the access of the mother to medical care, the condition of the mother’s health, and the subjective nature of a physician’s judgment regarding the baby’s viability. That viability would be the standard upon which regulation of abortion occurred is deeply unsatisfactory as a matter of law.
Roe and Casey corrupt absolutely. Other areas of the law, the court states, have been negatively impacted by the court’s abortion cases, including standing doctrines, res judicata principles, severability of unconstitutional provisions, the rule that statutes should be read where possible to avoid unconstitutionality, and First Amendment doctrines have been distorted.
A further observation beyond the court’s should be made here: Abortion has distorted the legal profession, has distorted the medical profession, has debased the dignity of life, and has compelled the country to acknowledge a lie about the status of human life in pregnancy and childbirth.
The Supreme Court’s opinion finally turns to the grandiosity displayed by the Casey opinion in upholding the constitutionality of abortion. The authors of Casey asserted that reversing Roe would be perceived as made “under fire” and a “surrender to political pressure.” They further “call[ed] the contending sides of a national controversy to end their national division.”
Both sides needed to accept the judicial settlement offered by the Supreme Court. As Notre Dame law professor Gerard Bradley noted of the Casey plurality, “We will be your Court, and you will be our people.”
The Dobbs majority plainly points to the hubris of Casey on these points. In contending that it had finally settled the issue of abortion, the court “exceeded the power vested in us by the Constitution.” Moreover, “The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles.”
The Supreme Court further erred by exaggerating its ability to end politically the contest over abortion, which since Casey was handed down has continued unabated. In this, the Dobbs opinion ends with humility in the face of our constitutional structure of power, which accords state legislatures the right to decide abortion.
In exceeding its constitutional remit on abortion, the court has worked grave damage to our republic. In the end, the Dobbs majority states, “We can only do our job, which is to interpret the law.” If it stands, they have done still more. They have given us justice under the Constitution.
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