Roe v. Wade has haunted American society for 49 years. Last Friday, the Supreme Court of the United States finally reversed Roe, a project decades in the making. Dobbs v. Jackson Women’s Health Organization, whose majority opinion was authored by Justice Samuel Alito, is the new governing Supreme Court case for abortion.
The ruling in Dobbs isn’t exactly a surprise. In early May, Politico published a leaked draft of the majority opinion that substantially maps the final opinion released today. We knew five justices had voted to abrogate Roe and Planned Parenthood v. Casey and that the majority was intact as of the leak. Still, votes switch. Justices cower. Political pressure tamps boldness and refines sweeping rulings. Whatever a draft majority articulated in May, a final majority decimating Roe was not assured—especially against an onslaught of threats, intimidation, and violence against the justices personally and Pro-Life groups resulting from the leak.
But Dobbs indeed delivered after the tempting appetizer. Below is a walk-through of what the majority opinion says.
Justice Alito lays out the two operative questions regarding Roe and the purported constitutional right to abortion. First, was Roe properly decided in the first instance, or was it the product of a flawed constitutional analysis? Second, do stare decisis principles require the Court to continue the right to abortion even though the Roe was legally erroneous? Through this framework, Justice Alito undertakes a scrupulous and academic analysis of history, the law, and abortion.
Were Roe and Casey correct?
Beginning his analysis, Justice Alito explores the different constitutional rationales for a “right” to abortion. The current theory is that the Fourteenth Amendment’s Due Process Clause protects abortion as a “liberty interest,” but other prominent legal theorists have proposed the Equal Protection Clause as a more suitable grounding. Justice Alito rejects this second theory because “regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.”
After dismissing the Equal Protection theory, Justice Alito turns to the Fourteenth Amendment’s Due Process Clause and the idea of substantive due process. Traditionally, courts have understood the Due Process Clause to protect two broad categories of rights: those that the first eight amendments to the Constitution guarantee, and another list of capacious rights not expressed in the Constitution. This second category of rights, known as substantive due process rights, is where abortion has long found a home.
Substantive due process—a famously (some might say infamously) controversial legal doctrine—is ripe for abuse, enabling judges to easily launder their policy preferences into the confines of legal interpretation. Therefore, Justice Alito recognizes the need to put guardrails on its usage, as it otherwise may be expanded into whatever a judge desires. Justice Alito cabins the substantive due process analysis by asking “whether the right is ‘deeply rooted in [our]history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” It is through this lens that he then painstakingly reviews the history of abortion in the United States.
Is abortion deeply rooted in our history and tradition or essential to ordered liberty? In short, no. The reasons for this conclusion are bountiful. Throughout common law and up to the early nineteenth century, states criminalized abortion after quickening—that is, when the woman could feel the preborn child’s movements. But even before this point, states considered abortion to be “unlawful” even if it wasn’t altogether banned. For example, pre-quickening abortion was a predicate for felony murder, meaning an abortionist could be charged with murder if the mother dies as a result of such an abortion. Felony murder exists only when an underlying crime—in this case, the pre-quickening abortion—kills a person. At no time in pregnancy was abortion even closely approximating a “right.”
From here, the history only crystallizes. States started enacting full abortion bans in the nineteenth century. By the time states fully ratified the Fourteenth Amendment in 1868, 28 out of 37 states fully prohibited elective abortion. Ohio passed such a law just months after ratifying the Fourteenth Amendment. More states did likewise in the years that followed. No reasonable person—indeed, no reasonable justice—could conclude these states chose to ban a constitutional right they knowingly just ratified. As Justice Alito summarizes, “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
Finally, others want to ground abortion in a more general understanding of autonomy. Justice Alito quickly shoots down this argument:
“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”
Abortion is not an isolated act of an atomized individual, but someone intentionally killing a vulnerable party.
After engaging with the extraordinarily hollow dissent, Alito concludes,
“Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt [a theory of life that excludes preborn children].”
Stare Decisis:
Consistency and predictability are critical aspects of a Court that can upend lives and invalidate laws. Stare decisis is the legal theory of respecting precedent even if the original decision was wrongly decided. Note what it is not: a requirement to always follow the original decision. All it means is that reversing a previous decision should not be a light exercise.
Justice Alito looks at five stare decisis factors to determine whether Roe and Casey are wounded dinosaurs that deserve to survive. They are: the nature of the Court’s error, the quality of the reasoning, workability, effects on other areas of law, and reliance interests. In all five areas, Roe and Casey fail remarkably.
The Court, by imposing one theory of personhood on the entire nation, erred enormously. The reasoning undergirding that error is even more laughable. Roe reads like a statute poorly written by uninformed politicians. It is certainly not law, as many notable progressive legal scholars admit. And Casey—itself a jumbled mess—doesn’t even attempt to defend the reasoning in Roe, which utterly lacks any semblance of quality.
Similarly, Roe and Casey have been unworkable from the start. Courts, and even the Supreme Court, have failed to universally and coherently apply them to factual cases. And for this reason and others, Roe and Casey have warped other aspects of law.
Finally, Justice Alito addresses how some in society may have grown to rely on the existence of Roe and the right to abortion. He notes that traditional reliance interests grow over time—would an ongoing decision or plan be upset? That is not the case for abortion, which is “unplanned activity.” Anyone can quickly modify their choices in response to Dobbs. No one is truly reliant on abortion. “Roe and Casey must be overruled.”
What this all means
Justice Alito then devotes some time to respond to the dissent and Chief Justice John Roberts’ misguided concurrence. After this, Alito lays out the new rule: “It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” All regulations and restrictions on abortion are subject to rational basis review, which means those laws are subject to least amount of scrutiny when examined by a court. All the law must do is rationally pursue a legitimate state interest.
What sorts of legitimate interests exist?
These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
What that means is that any of those interests are sufficient to justify state action against abortion. And those interests exist from fertilization. Lower courts may very well try to subvert this new standard, but they would only strain to do so. Abortion policy is back in the hands of the state. And everything up to a full ban is permissible.
The opinion ends:
Abortion presents a profound moral question. 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.
Goodbye, Roe. Hello, Dobbs.