In Dobbs v. Jackson Women's Health Organization, 19-1392 (U.S. June 24, 2022), the State of Mississippi asked the United States Supreme Court to uphold the constitutionality of its “Gestational Age Act” that generally prohibits abortion after the 15th week of pregnancy. Additionally, Mississippi argued that Roe v. Wade, 410 U.S. 113 (1973) (“Roe”) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (“Casey”) should be reconsidered and overruled and that each state should be allowed to regulate abortion as its citizens wish.
The majority of the Court reasoned that the Constitution makes no express reference to a right to obtain an abortion. Under Roe, the Court held that the abortion right is part of a right to privacy, and that the privacy right had been found to spring from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
The majority stated that in deciding whether a substantive right is entitled to protection under the Fourteenth Amendment's Due Process Clause, the Court has long asked whether the right is deeply rooted in the nation’s history and tradition and whether it is essential to the nation’s scheme of ordered liberty. The majority stated that historical inquiries of this nature are essential whenever the Court is asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” provides little guidance. The majority found that Roe either ignored or misstated history, and Casey declined to reconsider Roe’s faulty historical analysis. Thus, the majority conducted its own historical analysis.
At Common Law, abortion was a crime at least after “quickening”
The majority began its historical analysis with the common law, under which abortion was a crime at least after “quickening” - the first felt movement of the fetus in the womb, which typically occurs between the sixteenth and eighteenth week of pregnancy. The majority reasoned that even if a pre-quickening abortion was not itself considered a homicide, it did not follow that abortion was a legal right at common law. The majority cited explanations from Hale and Blackstone regarding the application of the principle of previous felonious intent to hold someone who killed a woman while attempting to perform an abortion accountable for murder.
The majority rejected the argument that a lack of criminal laws supported a finding that the right to an abortion was a fundamental right
The majority reasoned that the fact that many states in the late 18th and early 19th centuries did not criminalize pre-quickening abortions did not mean that the states lacked the authority to do so. The majority noted that they were unaware of anyone arguing that state laws on abortion that were enacted later in the 19th century violated a fundamental right.
The distinction between pre and post-quickening abortions abandoned
Next, the majority dismissed the importance of the “quickening” distinction because in the 19th century the rule was abandoned. In 1868, when the Fourteenth Amendment was ratified, 28 out of 37 states had enacted statutes making abortion a crime even if it was performed before quickening. By the end of the 1950s, statutes in all but four states and the District of Columbia prohibited abortion however and whenever performed, unless done to save or preserve the life of the mother. At the time Roe was decided, 30 states still prohibited abortion at all stages except to save the life of the mother.
The majority rejected the petitioners’ legislative motive argument
The majority rejected the argument that the abortion laws in the United States in effect at the time the Fourteenth Amendment was enacted were enacted for illegitimate reasons. The majority found it improbable that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women. Instead, the majority found that there was ample evidence that the passage of these laws was spurred by a sincere belief that abortion kills a human being.
Based on this history, the majority held that the right to abortion is not deeply rooted in the United States’ history and traditions.
Ordered liberty sets limits and defines the boundary between competing interests. The Court found that our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. The Court rejected attempts to justify abortion through appeals to a broader right to autonomy and found the cases on which Roe and Casey relied as precedent inapposite because none of those decisions involved the critical moral question posed by abortion.
The majority reasoned that the doctrine of stare decisis is not an inexorable command. In appropriate circumstances, the Court must be willing to reconsider and, if necessary, overrule constitutional decisions.
Relevant factors weighed in favor of overruling Roe and Casey
The majority found that five factors weighed 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. The majority found that Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the constitutional provisions to which it pointed and that Casey perpetuated its errors. Next, the majority found that the undue burden test set out in Casey proved to be unworkable. Additionally, Roe and Casey required courts to engineer exceptions to longstanding background legal doctrines. Lastly, the majority found that conventional, concrete reliance interests were not present and refused to acknowledge the more intangible form of reliance recognized in Casey.
Public perception of the Court is not a basis to uphold precedent
The majority explained that while it is important for the public to perceive that its decisions are based on principle, the Court cannot exceed the scope of its authority under the Constitution, and it cannot allow its decisions to be affected by concern about the public’s reaction to its work.
The majority stated that nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion. The majority noted that rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter uniquely involved what Roe and Casey termed “potential life.”
The Court held that the rational basis standard of review governs if state abortion regulations undergo constitutional challenge. Furthermore, a law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. Such laws must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.
The Mississippi Legislature’s findings asserted the state’s interest in protecting the life of the unborn, the elimination of what the Legislature found to be a barbaric medical procedure, the protection of maternal health, and the preservation of the integrity of the medical profession. The Court found that these interests were legitimate and provided a rational basis for the Gestational Age Act. Thus, the respondents’ constitutional challenge failed.
The Court held there is no Constitutional right to obtain an abortion and overruled Roe and Casey. Therefore, states may regulate and prohibit abortion. The Court also found that Mississippi’s Gestational Age Act was constitutional.
Writing for the dissent, Justice Kagan explained that the majority’s decision discarded the balance reached in Casey between competing interests around the issue of abortion. Instead, the majority’s decision erased the woman’s interest entirely and recognized only the state’s. The majority’s decision enables a state to impose its moral choice on a woman and coerce her to give birth to a child. Additionally, nothing in the majority’s decision stops the federal government from prohibiting abortions nationwide from the moment of conception and without exceptions for rape and incest.
Justice Kagan found that the majority’s decision curtailed women’s rights and their status as free and equal citizens. Justice Kagan rejected the majority’s view that the Fourteenth Amendment must be read now just as the ratifiers read it. The ratifiers were men who did not perceive women as equals and did not recognize women’s rights. Furthermore, the framers of the Constitution defined rights in general terms to permit future evolution in their scope and meaning.
Justice Kagan rejected the majority’s historical approach and explained that for decades the development of constitutional law has proceeded differently. The Court has considered fundamental constitutional principles, the whole course of the nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. Thus, applications of liberty and equality, as guaranteed by the Fourteenth Amendment, can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.
It has been recognized that there is a realm of personal liberty that the government may not enter, especially relating to bodily integrity and family life. A multitude of decisions supporting this principle led to Roe and Casey. In turn, Roe and Casey supported additional protections for intimate and familial relations. Justice Kagan emphasized that the point of a right is to shield individual actions and decisions from political controversy; thus, no matter how divisive, a right is not at the people’s mercy.
Precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven, and Justice Kagain expressed concern that the majority’s decision will be extended to other rights. Justice Kagan rejected the majority’s assurances that its decision did not cast doubts on precedents not concerning abortion. Justice Kagan reasoned that because the rationale for the majority’s opinion was its finding that the right to abortion was not “deeply rooted in history,” other rights that have no history stretching back to the mid-19th century are also insecure. Additionally, Justice Thomas’s concurrence explicitly recognized that other precedents are at risk.
Justice Kagan also criticized the majority’s abandonment of stare decisis. Under the principle of stare decisis, courts may not overrule a decision without a special justification. Justice Kagan explained that Roe and Casey had been the law of the land for decades, women have relied on these precedents in structuring relationships and planning their lives, and the legal framework set out by these precedents had proved workable in courts across the country. Furthermore, the majority’s opinion discarded this workable standard for something novel and probably far more complicated that will force the Court to wade into moral issues.
Justice Kagan explained that this was the first time in history that the Court rescinded an individual right in its entirety and conferred it on the states. There had been no legal or factual change that supported overturning settled law giving women control over their reproductive lives. Instead, the only thing that had changed was the composition of the Court. Thus, the dissent found that the majority’s opinion improperly substituted a rule by judges for the rule of law.