Dobbs v. Jackson Women’s Health Organization, a landmark Supreme Court decision of summer 2022, overturned Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992). Consequentially, access to abortion has shifted from federal to state jurisdiction. 

The decision dominated headlines, as protests and emotional reactions sparked across the nation. President Joe Biden described June 24th, the date Dobbs was decided, as “a very solemn moment for the United States,” via Twitter. He remarked further within the same statement that “the Supreme Court expressly took away a Constitutional right from the American people.” This belief that abortion is a “Constitutional right” was directly countered by the Court in the Dobbs decision. 

Photo by Gayatri Malhotra on Unsplash.

The Supreme Court’s role within the United States government is to uphold constitutionality within federal law. In overturning both Roe and Casey, the Court denies the constitutional relevance of any right to abortion. It does not, however, prohibit the states from providing access to such procedures via legislation. 

Abortion, from a constitutional standpoint, is controversial and quite frankly confusing, thus meriting a review of sorts. Free of any argumentation on the social issue itself, I’d like to offer my breakdown of the Court’s argument and why it makes sense to me. Unless otherwise stated, all text excerpts and factual statements have been directly cited from the Dobbs decision.

To begin, context is important. The Dobbs v. Jackson Women’s Health Organization case arose in December of 2021, surrounding Mississippi’s Gestational Age Act. In sum, the act prohibits abortion in Missippi beyond 15 weeks of pregnancy, “except in a medical emergency or in the case of a severe fetal abnormality.” In the Dobbs case, Jackson Women’s Health Organization, based in Mississippi, sought to overturn the state law on the basis that it was unconstitutional.

This declaration of the law’s unconstitutionality was based on precedent, turning to the historical rulings in Roe and Casey as its primary judicial defense. The case then shifted in focus from Mississippi’s Gestational Age Act and considered, rather, the constitutionality of Roe and Casey. 

It is important to note that Casey v. Planned Parenthood’s decision was ruled on the basis of stare decisis. Stare decisis means the case was decided based on precedent, with Roe’s preexisting ruling as its primary evidence of defense.

The Dobbs decision discusses the judicial argumentation in Casey, stating: “a proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based.” Essentially, the Court dismissed the legitimacy of Casey’s argument, describing its legal basis of Roe as inadequate.

Casey presented abortion as an “ordered liberty” supported by the Fifth and Fourteenth Amendments. Essentially, Casey applied this constitutional concept of liberty to abortion, saying that access to abortion ought to be granted as part of the United States’ commitment to its citizens’ personal liberties, using the concept of ordered liberties as judicial support.

The Court has a long-standing policy by which it selectively applies the term, “ordered liberty”, stemming from the Due Process Clause in the Fourteenth, Ninth, and Fifth Amendments. The Due Process Clause prohibits any denial of the unalienable rights of life, liberty, and property in the United States without the due process of law. Vague in its application, the constitutional criteria for ordered liberties can only be applied to rights which are “deeply rooted” in the nation’s history and tradition.

The Dobbs decision, however, claims that the right to an abortion is not essential to the nation’s history or tradition, nor is it explicitly alluded to in the Constitution. Thus, the Court rejected Casey (and Roe)’s application of “ordered liberty” as defense for the constitutionality of abortion. 

Dobbs describes the application of the Due Process Clause, and/or “ordered liberties” to rights “guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty,” writing further, “the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion” as consequential analysis.

The Court dismissed the concept of history and tradition in relation to abortion by citing the fact that there existed no protection of abortion until “the latter part of the 20th century.” The decision states rather that, “abortion had long been a crime in every single state,” and that the assertion that abortion applies to common law is “egregiously wrong.”

Dismissing Casey and Roe’s historical claims of constitutional justification, the Court rejected the legitimacy of Casey v. Planned Parenthood in the Dobbs decision. 

The Court’s inquiry then became essentially focused on the constitutionality of Roe v. Wade, used as precedential support in both Dobbs and Casey. While Roe included reference to the Due Process Clause, it also alluded to the right to privacy referenced in the First, Fourth, Fifth, Ninth and Fourteenth Amendments. These Amendments protect: freedom of religion, speech, the press, assembly, and petition; freedom from search and seizure; freedom to remain silent; freedom from any violation of non textual rights (alluded to in the Constitution) by state governments; and equal legal protection and citizenship for all persons born in the United States.

Though allegedly glanced over in Casey, the Court needed to examine the justification behind Roe to assess the argumentation of Jackson Women’s Health Organization in the Dobbs case. The Court rejected the allusion to privacy in reference to abortion as a “broader entrenched right.” Roe made the claim that the right to an abortion was protected under one’s right to privacy, supported by the Amendments. However, the Court dismissed this claim in Roe, saying the application of privacy in this instance was too general. The decision writes that the “high level of generality could license fundamental rights to illicit drug use, prostitution, and the like.” Furthermore, the Court relays that abortion poses a much larger moral question than did other cases used as precedent in Roe and Casey. Thus, the Court overturned Roe’s decision, consequentially overturning Casey and taking the side of Dobbs in the case against the Jackson Women’s Health Organization.

Aside from the “quality of the reasoning” within such precedential cases, the Court overturned Roe and Casey for other, more practical, reasons. 

One of such reasons being Roe and Casey’s lack of “workability” and/or ability to “be understood and applied in a consistent and predictable manner.” Second, being the Court’s claim that the case, in union with Roe and Casey, would have a distortional effect on many “important but unrelated legal doctrines.” And lastly, the opinion that the case would have “intangible effects on reliance” and take away from a judicial practice which ought to re-examine justice under the law.

The larger argument, however, rests in the Court’s rejection of Roe and Casey’s constitutional reasoning, used as precedent in the Dobbs case. The Court rejected such precedent, a decision for the history books, on the grounds that abortion is not an ordered liberty by the Supreme Court’s process of distinction, nor can it generalized as a matter of privacy. 

Beyond the morality of abortion itself, I’d reiterate the Court’s claim that abortion has no place as a federal protection, following the Court’s long-held procedure of distinguishing ordered liberties from assumed rights. I’d like to emphasize that the role of the Court is not to assess social matters, but rather, to assess their relevance to the Constitution. Regardless of one’s personal views on progressive practices, the Constitution does not consider abortion a right, and we cannot pretend abortion is relevant to our historical federal understanding. Access to abortion ought to be decided by the states and their legislatures.

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