The United States experienced a legal and political earthquake on 24th June, when the Supreme Court handed down its judgment and opinion in the case Dobbs v. Jackson Women’s Health. An unprecedented leak of the majority opinion in May had given us a preview of the probable outcome, but speculation remained that the Court would modify its opinion before it was officially released and judgment was entered. But while there were some minor changes between the leaked draft and the official majority opinion, the substantial holding was unchanged.
After more than 49 years, the infamous case of Roe v. Wade (along with its later reaffirmation, Planned Parenthood v. Casey), which had prohibited any of the 50 States from regulating abortion in any meaningful way, was overruled in its entirety. As Associate Justice Samuel Alito’s majority opinion succinctly stated: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives”.
The simplicity of what the Court did seems to be almost universally overlooked or ignored, especially by abortion proponents. The Court did not make abortion illegal in any of the States. It did not declare that women do not have a right to obtain an abortion. It did not say that the Constitution or federal government may deny access to abortion for any or no reason. It did not say that any federal official could impede access to abortion. Rather, Dobbs merely and modestly concluded that the Constitution contains no provision or implication that prohibits the citizens of any of the 50 States, through their elected representatives, from prohibiting or regulating abortion access.
Of course, the route to that conclusion is not so simple, as 49 years of contentious jurisprudence demonstrates. Justice Alito, therefore, went to great pains to be as thorough and circumspect as possible in demonstrating why Roe and Casey were wrongly decided, and why neither text nor tradition could justify their attempt to root a constitutional right to abortion in the Fourteenth Amendment or any other provision of the Constitution.
First, the decision asks whether the Fourteenth Amendment’s “due process” and “equal protection” clauses (“nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) can reasonably be applied in the way that the Roe and Casey Courts purported to find a Constitutional right to obtain an abortion.
As to the due process clause, the Court determined that the liberty protected by the Amendment does not include the freedom to obtain an abortion, and no reasonable interpretation of the Amendment could expand its meaning otherwise. The right to obtain an abortion is not a liberty protected by the Fourteenth Amendment, because it is a right neither expressly enumerated in the text of the Constitution, nor one that is “deeply rooted in [our] history and tradition”.
The Fourteenth Amendment was one of the post-Civil War amendments, the purpose of which was to protect the freedom of newly emancipated slaves. The liberty interest found in the Amendment, therefore, cannot reasonably be expanded to imply a substantive right to abort a child. As Justice Alito noted in demonstrating this point, at the time the Fourteenth Amendment was passed, abortion was a crime at any stage of pregnancy in seventy-five percent of the States. And it remained so in the several states for generations beyond the passage of the Fourteenth Amendment because no one reasonably concluded that these laws were prohibited by the Amendment.
The opinion makes a very important distinction in this context. Pro-Roe advocates contend that there are many implied rights that the Court has found to be protected by the due process clause. Alito responds, however, that none of these implied rights necessarily ends another life as the immediate effect of its exercise. And it does not matter whether one calls the developing child a foetus, potential life, or any other term. No term or qualification can change the fact that the exercise of the alleged right itself immediately terminates the life of another being. Indeed, it’s the very purpose of the “right”. Thus, the liberty to obtain an abortion is neither expressly nor impliedly protected by the Amendment.
The Fourteenth Amendment’s equal protection clause was similarly despatched by the Dobbs decision, on the basis that a “State’s regulation of abortion is not a sex-based classification,” and therefore is not found even in the penumbra of rights or liberties comprehended by the Amendment. Regulation of a medical procedure that is available only to one sex is not a violation of equal protection, unless the regulation is a mere pretext to invidiously discriminate against that sex. While pro-abortion demagogues make precisely this charge, no serious legal scholar does, and nothing in the Court’s abortion jurisprudence suggests otherwise. Again, this does not imply that the Constitution prohibits abortion, or that it prohibits States from allowing abortion access. It merely says that the due process clause of the Fourteenth Amendment does not prevent a state from proscribing or regulating abortion.
Having determined that Roe was “egregiously wrong”, the Dobbs majority opinion then asks whether it should be upheld nonetheless under the principle of stare decisis. Stare decisis is the interpretive rule according to which prior judgments of the Court should be followed and upheld in most instances. But the principle is not “an inexorable command”, says Dobbs. It “does not compel unending adherence to Roe’s abuse of judicial authority”. Even though other principles of stare decisis are invoked in Dobbs, the fact that Roe was “egregiously wrong from the start” is sufficient to overcome any contentions that it should be left to stand in any event. These include any alleged reliance interests or the sheer passage of time.
Finally, the Court asked whether reversing Roe would shake the confidence of the rule of law and the respect for the Court. To be sure, pro-abortion demagogues have alleged just that. But the inarguable conclusion is that Dobbs is a step in repairing the rule of law and respect for the Court. This is because Dobbs refuses to base its judgment and opinion on a preferred policy outcome, but rather solely on what the law (in this case the U.S. Constitution) demands. In oral argument, Associate Justice Sotomayor suggested that the Court “would not survive the stench” if it reversed Roe. On the contrary the Dobbs decision is a major step in fumigating the lawless stench that was Roe v. Wade.
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, the seminary for the Archdiocese of Cincinnati. He holds the Ph.D. in theology from Boston College, and the J.D. from Duke University School of Law.
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