Writer: Simran Agarwal
Editor: Nicole Baschky
Fall 2023
In the summer of 2022, The Supreme Court was presented with the case Dobbs v. Jackson Women’s Health Organization. This landmark case addressed whether the Constitution protected a woman's right to an abortion, using Roe v. Wade (1973) as precedent. In Dobbs, the Court was tasked with reviewing Mississippi’s Gestational Age Act. This law banned most abortions after 15 weeks of pregnancy, with exceptions made for medical emergencies and fetal abnormalities. In a 6-3 split, the Court held that the Mississippi law was Constitutional and overturned two previous cases, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court’s decision concluded that the Constitution does not protect the right to an abortion and that each State may regulate abortion.
Although the Court was split 6-3 in the case of Dobbs v. Jackson, choosing to overturn the case, Chief Justice Roberts did not agree with the rest of his Republican peers in overruling Roe and Casey, as he viewed them as the law of the land. Additionally, in a rare occurrence, Justices Kagen, Sotomayor, and Breyer dissented against the Court’s decision to overturn nearly five decades of precedent and for undermining a woman’s right to freedom and equality.
The primary amendment to all cases surrounding abortion revolves around the Fourteenth Amendment. Specifically, the second clause, that all citizens are provided with “equal protection under the laws,” is the main issue with abortion, along with the Due Process Clause, which states that no person shall be “deprived of life, liberty of property without due process of law.” Both these clauses say that all citizens have the right to fair procedures and cannot be discriminated against for any reason. The Supreme Court has also used this part of the Fourteenth Amendment to allow or prohibit certain practices, such as the right to privacy regarding sexual relations. In Roe v. Wade, the Court used the Due Process Clause to rule that the right to privacy included a woman’s decision to have an abortion and that states could not ban or prevent women from getting an abortion.
Upon looking at the Supreme Court’s ruling, two major points influenced the justices’ decision. Point one was to determine whether the Fourteenth Amendment references liberty when protecting a particular right. They found that the Constitution made no express references to the right to obtain an abortion; however, they did find several Constitutional provisions that could be used to determine whether the Fourteenth Amendment's reference to liberty extended to abortion. The first precedent case, Roe, held that a woman’s right to get an abortion is part of the right to privacy derived from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Additionally, when looking at the case of Casey, the Court also ruled that the right to obtain an abortion is part of the liberty mentioned and protected by the Fourteenth Amendment's Due Process Clause.
The next point in the Court’s decision was examining whether the right to obtain an abortion was rooted in the nation’s tradition and if granting abortions is an essential component of “ordered liberty.” Upon research, the Court found that the right to an abortion was not deeply rooted in the nation’s history. The question of whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty” is from the case Timbs v. Indiana. This question is used to create two categories of substantive rights: rights guaranteed by the first eight amendments and fundamental rights not mentioned in the Constitution.
This question of liberty and tradition is essential whenever the Court is faced with a new component of “liberty” that is protected by the Due Process Clause. The Court asserted that it is crucial to separate against what the Fourteenth Amendment protects and what Americans believe liberty is. Therefore, it is often difficult for the Court to recognize rights concerning one's liberty if it is not explicitly mentioned in the Constitution (Collins v. Harker).
Essentially, the Court found that the right to an abortion was not a fundamental constitutional right as there was no basis for it in either the Constitution or the nation’s history. In the case of Dobbs v. Jackson regarding Mississippi’s Gestational Act, the Court ruled that “except in a medical emergency or in the case of a severe fetal abnormality, the statute prohibits abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The Court went on to declare that each state, with the help of the people and their elected representatives, would have the right to regulate or prohibit abortion.
Although Chief Justice Roberts agreed that the Mississippi Gestational Act was Constitutional, he was uncertain about the Court’s decision to overrule Roe V. Wade: “The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases.” Chief Roberts says in his concurring brief, “Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.” Chief Roberts asserts that a ban on all abortion should have been weighed differently on a ban after 15 weeks as “Almost all know [about a pregnancy] by the end of the first trimester. Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman to decide for herself whether to terminate her pregnancy.”
On the opposite side of the case, three justices dissented from the overturning of precedent - a case that was deemed the law of the land. Justices Breyer, Sotomayor, and Kagan, dissenting opinions, State that “The Court struck a balance, as it often does when values and goals compete…today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no right to speak..one result of today’s decision is certain: the curtailment of women’s rights and of their status as free and equal citizens.” The three Justices go on to talk about what the weight of the Court’s decision truly means. By banning abortion before viability, they force women into finding other illegal and unsafe methods to obtain abortions; “As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. The Constitution will, today’s Majority holds, provide no shield, despite its guarantees of liberty and equality for all.”
The Justices continue to assert that the Majority failed their duties to the people by ruling on the case with their opinions rather than a judicial hand; “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
Ultimately, while the majority believed that the right to an abortion was not within the nation’s tradition or Constitution, the minority ruling saw the decisions made by the Court as an attack on women’s rights, preventing them from receiving the liberty and freedom all citizens deserve.
References
Dobbs v. Jackson Women’s Health Organization (2022). National Constitution Center –
constitutioncenter.org. (n.d.). https://constitutioncenter.org/the-constitution/supreme-court-case-library/dobbs-v-jackson-womens-health-organization#:~:text=In%20Dobbs%2C%20the%20Supreme%20Court,law%20and%20overturned%20Roe%20v
Landmark legislation: The Fourteenth Amendment. U.S. Senate: Landmark Legislation:
The Fourteenth Amendment. (2023, August 7). https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm
Monk, L. R. (n.d.). Due process and equal protection. PBS.
Supreme Court of the United States. (n.d.).
Supreme Court case: Dobbs v. Jackson Women’s Health Organization. Center for
Reproductive Rights. (2023, May 12). https://reproductiverights.org/case/scotus-mississippi-abortion-ban/
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