Roe v. Wade—one of the most contentious Supreme Court decisions of the modern era—was sent to history’s dustheap on Friday.
In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote the majority opinion, stating:
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, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Alito’s opinion in full.
In a separate opinion concurring in the judgment, however, Chief Justice Roberts accused the rest of the conservative majority of not practicing judicial restraint and going “too far” in overruling Roe.
With this decision, the Supreme Court corrected a grave constitutional error by overruling not just Roe, but its 1992 progeny, Planned Parenthood v. Casey, both of which created a “right” to abortion in the Constitution.
The justices recognized that such a right does not exist, which means the American people and their elected representatives have the authority to address this important issue in the legislatures of America.
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 recognized such a constitutional right either. At common law, abortion was criminal and unlawful, and remained so until 1973, when the high court decided Roe
Roe v. Wade imposed upon America a national abortion policy far more extreme than the common law or any statute legislature ever had chosen for itself, with complicated rules for implementing that policy.
In fact, that policy is one of the most extreme in the entire world. None of it, however, came from the Constitution; instead, Roe was a policy decision imposed on the nation by seven men on the Supreme Court that undid the pro-life laws of all 50 states.
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Some of Roe’s harshest critics were constitutional scholars who candidly said they agreed with the high court’s policy of unrestricted abortion. Policy, however, is not the court’s job. Interpreting and applying the law is.
Roe is one of the most flawed, discredited, and criticized decisions in Supreme Court history. But as precedent, it was considered untouchable by liberal scholars and pundits alike.
Courts should, in general, follow their previous decisions. They also should be open, however, to admitting when they have made a mistake and willing to correct that error. This is especially so in constitutional cases, since only the Supreme Court can correct those errors, absent a constitutional amendment.
The Supreme Court asks two questions when asked to overrule prior precedent: Was the precedent correctly decided and, if not, does the cost of keeping it outweigh any benefit?
With its ruling Friday, the court recognized not just Roe’s many errors but determined that the cost of keeping such a flawed decision was too high to let it stand.
Dobbs centered on Mississippi’s Gestational Age Act, a law restricting abortions, with limited exceptions for medical emergencies or severe fetal abnormalities, after 15 weeks of pregnancy. The district court and the 5th U.S. Circuit Court of Appeals enjoined the law as violating the Supreme Court’s abortion precedents.
In overruling both Roe and Casey, the Supreme Court said that a proper application of the legal principle of stare decisis requires an assessment of the strength of the grounds on which Roe was based, something the Casey decision failed to do.
Because the Constitution makes no express reference to the right to obtain an abortion, and abortion is also not deeply rooted in the nation’s history and tradition (something that Alito examined in depth in both the opinion and a lengthy appendix of state abortion laws), it is not an essential component of ordered liberty and therefore, not protected by the due process clause of the 14th Amendment.
The majority opinion differed little from the leaked draft opinion from February of this year, with the court writing:
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.
Thomas and Kavanaugh wrote separate concurring opinions, with Thomas emphasizing that the appropriate question of whether the due process clause conferred a right to abortion was not whether abortion was a “liberty” interest envisioned by the Framers, but whether the clause guaranteed a “process” only before a person was to be deprived of “life, liberty or property.”
Thomas argued for a reconsideration of other “substantive due process” holdings in cases such as Obergefell v. Hodges (about same-sex marriage) and Lawrence v. Texas (about sodomy laws), something that set the Twitterverse aflame.
Kavanaugh wrote separately to note that the Constitution is neutral on the issue of abortion, and that in deciding Roe, the court had taken sides on a consequential moral and policy issue that it had no constitutional authority to decide.
In his separate concurrence, Roberts accused the conservative majority of not practicing judicial restraint, and going “too far” in overruling Roe.
The chief justice agreed that the “viability rule”—a woman’s right to terminate her pregnancy extending up to the point that the fetus is “viable” outside the womb—should be discarded.
But, as he did during oral arguments, Roberts argued for a middle way, an outcome that simultaneously would have upheld the Mississippi law and Roe v. Wade. During oral arguments, however, all parties argued that Roe and Casey either must stay or go.
Predictably, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor voted as a bloc. They jointly authored a dissenting opinion that was light on the law and heavy on arguments concerning “reliance” and “precedent.” Among the trio’s more policy-driven statements:
We referred there to the ‘people’ who ratified the Fourteenth Amendment: What rights did those ‘people’ have in their heads at the time? But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our nation.
From Roe v. Wade, decades of bad law, bad policy, and bad blood have sprung. The decision issued Friday is a tremendous victory for America and for the sanctity of the unborn. But it is also a victory for the sanctity of the Constitution and the rule of law.
The Supreme Court rightly recognized that abortion—an issue that has divided the nation and enflamed its passions for decades—should be decided by the people and their elected representatives. The decision in Dobbs is a timely reminder of how our system of representative government ought to work.
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