On June 24, 2022, the Supreme Court of the United States issued its decision in the case, Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization et al., 597 U.S. _____ (2022), which concluded that the United States Constitution does not confer a right to abortion. The decision has the effect of overruling the landmark cases, Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and, as a result, now leaves the issue of abortion to each individual state's rulemaking.
By way of background, in Roe, the Supreme Court ruled that the constitutional right to privacy includes a woman's qualified right to terminate her pregnancy, thus establishing a nationwide constitutional right to abortion, and, in Casey, the Supreme Court partly reaffirmed Roe but replaced Roe's trimester structure with a fetal viability standard (24 weeks into pregnancy). Roe held that the abortion right is part of a right to privacy that springs from the First, Fifth, Ninth and Fourteenth Amendments, while Casey grounded its decision on the theory that the right to obtain an abortion is part of "liberty" protected by the Fourteenth Amendment's Due Process Clause. In re-affirming Roe's right to abortion, Casey relied in part on stare decisis, a cornerstone legal premise that requires courts to give weight to precedent when ruling on a similar case.
Mississippi Law Challenged
In Dobbs, the Supreme Court considered the constitutionality of Mississippi's Gestational Age Act, a 2018 law that bans abortions following the first 15 weeks of pregnancy, other than for medical emergencies or severe fetal abnormality, but with no exception for rape or incest. The Supreme Court ruled 6-3 to reverse the lower court rulings in Dobbs and 5-4 to overturn the Roe and Casey decisions, thus striking down the federal protection of abortion and leaving a woman's right to choose to each individual state's lawmaking.
Supreme Court's Majority Decision
The majority decision in Dobbs (authored by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett) found that abortion is neither explicitly protected by the Constitution, as abortion is not mentioned by the Constitution, nor implicitly protected by the Due Process Clause of the Fourteenth Amendment as a matter of right because any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty" to be so implicitly protected, and the Court did not find those elements to be present with abortion.1 The Court reasoned that stare decisis should not save Roe or Casey from being overturned, as that doctrine is not immune from attack when circumstances warrant a closer look. The Court found that Roe was not grounded in "any constitutional text, history, or precedent,"2 thus undercutting its merits, and that Casey's emphasis on stare decisis in adhering to Roe was misplaced. Going forward, the Court indicated that "rational basis review" is the appropriate standard to apply when state abortion regulations undergo constitutional challenge.3 Per the Court, this means that "[g]iven 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 regarding 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."4 On the basis of the foregoing, the Court determined that, as "the Mississippi law is supported by the Mississippi Legislature's findings, including the State's asserted interest in protecting the life of the unborn,"... "that these legitimate interests provide a rational basis for the Gestational Act."5
Justice Alito's decision is rooted in "originalism," a legal philosophy that involves scrutinizing the Constitution's language to glean guidance on contemporary disputes; the basis for Alito's apparent rationale is that the Fourteenth Amendment's protections of freedoms that are not explicitly mentioned in the Constitution must be limited to those rights that were understood to exist deep in the Nation's history, particularly at the time when the Amendment became law (in 1868). This contrasts with the competing philosophy that views the Constitution as a living document, the meaning of which can and should evolve with society.
Supreme Court's Concurring and Dissenting Opinions
While the majority opinion expressly limited the Court's decision to abortion rights, in his concurring opinion, Justice Thomas opined that the same rationale that the Supreme Court used to declare there was no right to abortion, should also be used when considering cases that challenge established rights to contraception, same-sex consensual relations and same-sex marriage.6 In a separate concurring opinion, Justice Kavanaugh explained the urgency of overruling Roe now, as it "has caused significant negative jurisprudential or real-world consequences,"7 and noted that, as the Constitution is "neither pro-life nor pro-choice," the issue should be left to "the people and their elected representatives to resolve through the democratic process in the States or Congress."8
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1. Dobbs, p. 12.
2. Dobbs, p. 46.
3. Dobbs, pp. 7, 77-78,
4. Dobbs, p. 7.
5. Dobbs, p. 8 and p. 78.
6. Concurring Opinion of Justice Thomas, p. 3.
7. Concurring Opinion of Justice Kavanaugh, p. 7.
8. Concurring Opinion of Justice Kavanaugh, pp. 2-3.
9. Dissenting Opinion of Justices Breyer, Sotomayor and Kagan, p. 15.
10. Dissenting Opinion of Justices Breyer, Sotomayor and Kagan, pp. 16-17.
11. Dissenting Opinion of Justices Breyer, Sotomayor and Kagan, p. 31.
12. Concurring Opinion in Part of Justice Roberts, p. 1.
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