The words that came across my Twitter feed two weeks ago still make me quiver:
“Held: 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.”
Just as the Christian right movement has long desired, and just as former President Donald Trump intended with his three picks for the Supreme Court, Roe v. Wade and Planned Parenthood v. Casey – two SCOTUS decisions that federally protected the right to abortion – are no longer the law of the land. States are now free to ban abortion as they see fit, all the way up to conception if they wish – even in cases of rape, incest or when the life of the mother is at risk.
Constitutional law can be confusing. Because of this, and because understanding such a consequential ruling is so important, I decided to break down the Court’s decision in Dobbs v. Jackson Women’s Health Organization so everyone has a better idea of what the decision and the justices’ opinions mean.
Facts
In the case at hand – Dobbs v. Jackson Women’s Health Organization – the Court was asked to decide the constitutionality of a Mississippi law that bans abortion after 15 weeks of pregnancy. This is in direct conflict with Planned Parenthood v. Casey – a 1992 decision that protects a woman’s right to choose to have an abortion up until fetal viability (generally considered around 24 weeks into the pregnancy).
The Court ruled 6-3 to uphold the Mississippi law, with Alito, Roberts, Kavanaugh, Barrett, Thomas and Gorsuch voting to uphold the law, and the liberal bloc of Breyer, Kagan and Sotomayor voting to strike down the law.
The Court ruled 5-4 to explicitly overturn Roe and Casey, with Roberts joining the liberals on the Court. I will say more about Roberts’ decision later.
States with Democratic state legislatures and/or Democratic governors (like Minnesota) will see no changes to abortion restrictions as long as Democrats are in power. On the other hand, around 25 of the most conservative states will see new abortion restrictions implemented in their state.
Wealthy, primarily white Americans that live in states with an abortion ban will still be able to get one if they wish, it will just require more travel and money to do so. These new laws will disproportionately and overwhelmingly impact people of color and poorer Americans who don’t have the luxury of traveling long distances to get an abortion.
Before I get to the justices’ opinions, it is important to note that all nine justices on the Court are incredibly intelligent. This makes deciding what opinions are most compelling far more difficult; if you read only one opinion, it’s easy to be swayed by it, as the justice that wrote it is one of the brightest legal minds in the country.
Majority opinion
The majority opinion, written by Justice Samuel Alito, did not pull any punches. It boils down to this quote: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The majority opinion focuses on the doctrine of stare decisis, which is Latin for “to stand by that which is decided.” In short, they focus on the concept of precedent, and whether Roe and Casey were “egregiously wrong” to the point where they need to be overturned.
On page 48, the majority writes that “Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 [when the Fourteenth Amendment was passed] is striking, and what is said about the common law was simply wrong.” But why does the Court care what the consensus is on state laws? At the time Plessy v. Ferguson was decided, the United States was incredibly segregated. Does that make Plessy – which established the “separate but equal” doctrine – a correct decision? The obvious answer is no.
On page 68, the majority writes that “Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half century.” But is the goal of the Court to end division on issues or to uphold the Constitution? The obvious answer is the latter. Brown v. Board of Education – a case the current Court used to explain how overturning a wrong decision can be necessary – was incredibly divisive, but it was the correct decision under the Fourteenth Amendment.
Lastly, the majority writes that the Constitution makes no mention of abortion. This is true in technicality only. Our Constitution is short, and its amendments are often quite broad. It would be a long, long document if it contained an exhaustive list of our rights.
Here is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Here is a portion of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If you read that and are left wondering “what the hell does that mean,” you are not alone. These amendments are broad. But the Court has long interpreted them to include a right to privacy. This includes the right to make private decisions with your doctor, like obtaining an abortion, but it also includes the right to do other things in your private life, like marry a person of the same sex (Obergefell v. Hodges), be intimate with a person of the same sex (Lawrence v. Texas) and obtain and use contraceptives (Griswold v. Connecticut). These are three SCOTUS decisions that Justice Thomas argues the Court should reconsider in the future. But I’ll get into that later.
Kavanaugh’s concurring opinion
Justice Kavanaugh wrote a concurring opinion – where a justice agrees with the majority but writes an opinion of their own to add more about their point of view – and we can learn a lot from it.
Kavanaugh’s opinion references how the Court is neutral on the topic of abortion, but they are giving the issue back to the states. This seems logical when taken at face value. What it fails to consider is that the whole point of the Constitution is to establish certain rights that are “out of bounds” for the states and federal government to infringe upon – the right to privacy is one of these rights in the Fourteenth Amendment.
Thomas’s concurring opinion
Justice Thomas, widely recognized as the most conservative justice on the Court, also wrote a concurring opinion. Much has been made of his radical beliefs in the world of social media, but they’ve perhaps been blown out of proportion.
Yes, his view that the Court should look into overturning other Supreme Court rulings that deal with a right to privacy, like Griswold (contraceptives), Lawrence (same-sex intimacy) and Obergefell (same-sex marriage), is out of touch, but he seems to be the only person on the Court who feels this way.
Alito’s opinion specifically says this: “And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our 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.”
Roberts’ opinion, concurring in judgment
Roberts’ “more measured approach” was quite compelling. He writes that he would have upheld the Mississippi law banning abortion after 15 weeks, but he also would have upheld the component of Roe and Casey that grants women the right to an abortion.
In upholding the Mississippi law, he would have thrown out Casey’s viability standard (that guarantees a woman’s right to choose up until fetal viability), which he argues “never made any sense,” and would have established the “reasonable opportunity” standard, where states would be required to allow women a “reasonable opportunity” to terminate their pregnancy.
In short, Roberts argues that Mississippi’s 15-week abortion ban doesn’t infringe on women’s core right to obtain an abortion – if they choose to have an abortion, 15 weeks gives them a “reasonable opportunity” to still do so.
It’s worthwhile to note that if Ruth Bader Ginsburg would have lived for a few more months, or had she retired when Barack Obama was president with a Democratic majority in the Senate, Roberts’ opinion would have been the majority opinion of the Court in this case. It’s amazing how much a single person’s heartbeat has to do with the rights of women in this country for decades to come.
Dissenting opinion
Though the liberals’ joint dissent was passionate and compelling, it doesn’t say anything that is unexpected. They feel the Court should have upheld Roe and Casey and should have struck down the Mississippi law.
My opinion
Going into reading the justices’ opinions and writing this column, I was expecting to disagree with every opinion besides the liberals’ dissent. That was not the case. Though my expectation was correct with Alito, Kavanaugh and Thomas, it was not true with Roberts.
In fact, strictly from a constitutional standpoint, his concurrence in judgment might be the most compelling. I view the Ninth and Fourteenth amendments to the Constitution to protect the right to privacy and the right for a woman to choose to terminate her pregnancy. That said, rights are not absolute. At some point, states deserve the right to protect fetal life in line with the views of their constituents. Consistent with this belief, a “reasonable opportunity” standard seems to make more sense than a “fetal viability” standard.
But with the makeup of today’s Court and with our current political climate, none of this matters. Neither of these standards are the law of the land. Not because they don’t make sense – they do. Not because the Constitution doesn’t guarantee a right to privacy – it does.
What does matter? A small, motivated, religious portion of our population – whose views, we used to agree, had no place in our government – voted like hell to get their views reflected on our Supreme Court. Two weeks ago, they got their wish. One can only hope that one day we – the majority of Americans – can again have our views reflected on the Court too.
