By Tabitha McDonald
This May marks two years since Dobbs v. Jackson Women’s Health Organisation (2022) (‘Dobbs’) overturned the right to abortion in the United States; a right established by Roe v. Wade (1973) (‘Roe’) and upheld by Planned Parenthood v. Casey (1992) (‘Casey’). The outrage from this decision extended beyond just America, reverberating across the globe. Here in Australia, thousands publicly rallied against the outcome, with messages of both sympathy and fear being shared across social media and traditional news platforms. Articles, infographics, and headlines repeated the consequences of this decision: thirteen trigger states would immediately outlaw abortion, with more certainly to follow. While this decision significantly weakened reproductive rights in the United States, it also created a social shift in how people everywhere conceptualised the security of these rights. From the outside, a constitutionally protected right had been swiftly and unexpectedly overturned. But the outcome of Dobbs did not come without warning, and further, not without reason.
Let me explain.
Dobbs concerned a Mississippi state law drafted in 2018, which banned most abortion operations after 15 weeks of pregnancy. A case was brought by Jackson Women’s Health Organisation, Mississippi’s only abortion clinic at the time, against Thomas E. Dobbs, a state health officer. The lower courts granted an injunction on the basis that the legislation conflicted with the Supreme Court precedent in Casey, which found that states cannot ban abortion before 24 weeks. However, this legislation wasn’t an attempt to pass determinedly unconstitutional legislation with the hope everyone would be looking the other way. The Mississippi legislators had intended to incite a legal battle. They knew that if a challenge to their law could reach the Supreme Court, there was a strong chance the relatively new Republican-elected majority would find in their favour. And as we know, that is exactly what happened. After several appeals, the majority of the Supreme Court found that abortion was not a protected right under the United States Constitution [1]. This majority consisted of the six Republican elected members. The dissent? It’s three Democrat elected members. It would be too easy, however, to attribute this ruling solely to the political views of the Supreme Court Justices - and potentially incredibly naive. Upon balanced consideration, it becomes clear that the reasoning in Roe was never particularly convincing.
In Roe, the Court introduced a constitutional ‘right to privacy’. They argued this implicit right had not yet been formally identified, but was intimated by earlier cases such as Griswold v. Connecticut (1965), which protected the use of contraception. The Court gave almost no explanation as to the breadth and width of this implicit privacy right, and made no attempt to identify a specific section of the Constitution which enlivened it. They argued that the right sprung from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and expressed the “feel[ing]” [2] that it was the Fourteenth that did most of the work in enlivening the privacy right. Casey subsequently grounded its argument in the “liberty” [3] protected by the Fourteenth Amendment’s Due Process Clause. However, even in Casey, only two of the nine Justices vocally supported the reasoning in Roe, with the rest of the majority using the principle of stare decisis (precedent) as binding them to this judgement [4].
In Dobbs, the majority opinion written by Justice Alito returned decisions regarding this issue to the states. They rebutted Roe’s claim of a constitutional source protecting the right to an abortion under the umbrella of a privacy right. They first argued Roe had “ignored" [5] the generally accepted condition that for a right to be inferred from the Constitution it must be “deeply rooted in this Nation’s history and tradition” [6]. Backing up this argument, they went on to cite that until the latter part of the 20th century, no federal or state court had recognised a right to an abortion. Further, when the Fourteenth Amendment was first adopted, three-quarters of the States had already made abortion a crime at any stage of pregnancy. When contrasted with other implied constitutional rights, such as the presumption of innocence, the court had little difficulty deeming abortion rights unessential to the “scheme of ordered liberty” [7] protected by the Constitution. Given this context, the Court concluded that abortion rights were not “deeply rooted’ in United States “history and tradition” [8].
The Court then considered the cases that Roe had used as precedent for the implicit privacy right supposedly recognised by the Fourteenth Amendment. The Court distinguished abortion rights from the findings on same-sex marriages (Obergefell v Hodges (2015)), sexual relations (Lawrence v. Texas (2003)), and contraception (Griswold v. Connecticut (1965)), by arguing it does not fall into this “broader right to autonomy” [9]. They emphasised that abortion is not something which helps define one’s “concept of existence” [10] such as marriage, but is a medical procedure which will end a potential human life. They argued there is undeniably a greater gravity to abortion, especially to those who believe life begins at conception, putting it further outside the scope of the “liberty” [11] protected by the Fourteenth Amendment.
The majority in Dobbs found the decision in Roe did not have strong reasoning. As such, they were able to overturn stare decisis. It is my belief that the decision in Roe was bad law, and while abortion rights should be protected, it is outside of the Court's power to protect these rights without a solid constitutional source. Put by the U.S. Constitutional scholar John Ely, while he “would vote for a statute very much like the one the Court end[ed] up drafting”, Roe was “not constitutional law”, and gave “almost no sense of an obligation to try to be'' [12]. However, it is also unlikely a federal statute will be passed any time soon. The Women’s Health Protection Act [13], introduced in 2013, intended to expand upon the rights protected by Roe. It passed the House of Representatives in 2021, but failed in the Senate in 2022. Even if it had survived the Senate, many lawyers believe the Supreme Court would have found this legislation outside the scope of Congress, which is restricted to matters outlined by the Constitution [14]. Further, if Congress did find abortion laws were within its power, this would open the possibility of federal abortion laws being reversed by later Republican majorities. Nonetheless, emphasis must be placed on other methods the federal government can use to protect the interests of those seeking access to an abortion, such as protecting the constitutional right to travel between states.
Consideration of Dobbs introduces us to the argument that Roe superimposed the protection of abortion rights on a legal document that had no room for it. The implied privacy right alone was not strongly grounded in its content, and when stretched to encompass abortion rights, the legitimacy of the Court's argument became thin. While Roe single-handedly changed the projection of abortion rights in the U.S. for the better, its weak argument left itself vulnerable to being overturned by any subsequent Supreme Court wanting badly enough to do so. However, there is an argument to be made that the subjective terms used by the Constitution are a deliberate method of allowing broad judicial interpretation. As put by Millhiser, “the Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito” [15], just as it rested with the Court in Roe all those years ago.
Ultimately, however, Roe’s weak constitutional standing made clear it was not a matter of if the decision would be overturned, but when. Paired with the republican majority in the Supreme court, reproductive rights in the United States were always vulnerable to being overturned without proactive pro-choice legislation. Nonetheless, Roe teaches us that many people, myself included, believe pregnant people should have the right to choose abortion. We believe this is the ‘right’ outcome. But this alone could not prevail over Roe’s incompatibility with a nebulous and intransigent legal document - and that is certainly a tough pill to swallow.
Endnotes
United States Constitution
Dobbs v Jackson Women’s Health Organisation (2022) No. 19-1392, 597 U.S 215, 10 [1]. (‘Dobbs’)
United States Constitution amend 14 § 1.
Dobbs (n 1) 5-6.
Ibid, 3.
Ibid, 2.
Dobbs (n 1) 2.
Ibid.
Dobbs (n 1) 4.
Ibid
United States Constitution amend 14 § 1.
J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 926, 947 (1973).
Women’s Health Protection Act (2021)
Ian Millhiser, ‘The Uncomfortable Problem with Roe v. Wade’, Vox (online, Aug 2 2022).
Ibid.
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