Since the draft decision overturning Roe v. Wade was leaked to Politico, I have talked to a lot of people about it. My pro-choice friends are as outraged as my pro-life friends are pleased. References to having “won” or “lost” are as common as disparaging comments about “the other side.”
One thing absent from the conversations is a detailed discussion of Justice Alito’s draft opinion. With very few exceptions, both sides ignore details. All that matters is the outcome.
Ignoring the legal arguments cited in support of the decision is unfortunate. Regardless of your position on abortion, it is important to acknowledge that the Court was doing what it is supposed to do—considering legal arguments related to the case before it and deciding the case based on its interpretation of the law and the Constitution.
In the case of Dobbs v. Jackson Women’s Health Organization, Justice Alito, apparently joined by four of his conservative colleagues, decided that the legal foundations for Roe v. Wade were wrongly reached in 1973 and should be overturned. Looking at the legal issues rather than whether we support abortion, is Justice Alito right?
The right to an abortion is not established in the Constitution in the same way as the right to bear arms, free speech, or freedom of religion. To establish the right to abortion, the Court in 1973 interpreted part of the Constitution, principally the Due Process Clause of the Fourteenth Amendment, as creating a right that was not explicitly referenced. That right was the “Right to Privacy.” It is the basis for the right to abortion and serves as the foundation for several other rights, including interracial and same sex marriage.
The key finding in Roe is that: “State criminal abortion laws, like those involved here [in effect in 1973], that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
The” bottom line” in Dobbs is not that the case bans abortion, it is that it returns the right to regulate the practice to the states. Abortion rights will remain in states, like Maryland, which have not enacted legislation restricting or banning abortion. The right will be restricted or eliminated in other states. Currently 23 states have such laws, including four that have passed a state constitutional amendment declaring that their constitution does not secure or protect the right to abortion.
The draft opinion indicates that for a right to be found in the Due Process Clause of the Fourteenth Amendment, the rights had to have been largely established at the time the Fourteenth Amendment was adopted. In overturning Roe, Justice Alito found that the right to an abortion was not well-established in American law at the time the Fourteenth Amendment was enacted,1868. He argues that because the right was not well-established in 1868, the right to an abortion cannot be read into the Constitution.
If formally adopted by the Court, the decision in Dobbs will be difficult for a future Supreme Court to overturn. The opportunity for such a reconsideration may also not arise for several years given the current ideological makeup of the Court and the unlikelihood of a liberal majority in the next several years.
One way to expedite a reversal of the Dobbs decision would be for Congress to expand the size of the Supreme Court. That action, popularly referred to as “Court packing,” is unlikely given the party split in the House and Senate and the probability of a Republican majorities in both in 2023.
The other way to reverse Dobbs would be to pass a Constitutional amendment. That option is not being discussed at this point, given that approval requires the votes of three quarters (38) of the States. It is currently inconceivable that a pro-choice amendment will be approved in the next 10 years.
That leaves pro-choice advocates—supporters of women’s rights—one avenue to limit the impact of Dobbs. That avenue is changing state laws by electing executives and legislators supporting the right to abortion.
The pro-choice v. pro-life fight is one that will be fought in the states. Proponents on both sides are well-advised to read the Dobbs opinion and shift the focus of their advocacy to states rather than the federal government. Absent the restoration of a federal right to an abortion, the issue is one that the states will control.
Unless the role of the Supreme Court is changed from that of an interpreter of laws to some sort of super-legislature, the law and Constitution, as interpreted by the Court, will control the right to abortion.
J.E. Dean is a retired attorney and public affairs consultant writing on politics, government, nature, and other subjects.
Deirdre LaMotte says
As someone beautifully said :
The “unborn” are a convenient thing to advocate for. They never make demands of you; they are morally uncomplicated, unlike the addicted, poor or incarcerated; they don’t resent your condescension or complain that you are not politically correct; unlike orphans,they don’t need money, education, or childcare; unlike “aliens”, they don’t bring all that racial, cultural, and religious baggage you dislike; they allow you to feel good about yourself without any work or maintaining relationships; and when they are born, you can forget about them because they cease to be unborn. You can love the unborn and advocate for them without substantially challenging your own wealth, power, privilege, without reimagining social structures, or making reparations to anyone.
The sick? The poor? Prisoners? Immigrants? All specifically mentioned in the Bible? They are thrown under the bus for the unborn.
And don’t forget the important focus: controlling women.
Stephen Schaare says
Give it a break already.
Deirdre LaMotte says
Spoken like a clueless man. You have no say in any of this so maybe you should keep quiet.
James Nick says
This is how the First Amendment of the US Constitution begins…
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
It’s commonly referred to as the “Establishment Clause”. The Establishment Clause is a limitation placed upon the United States preventing it from establishing a religion. It appears before the right of free speech, the right to a free press, the right of assembly, and before the right to bear arms. Its prominence and placement in the Constitution clearly shows that it was THE number one concern of the founding fathers. The Framers were acutely aware of how divisive and threatening religion was throughout history and wanted to establish up front that religious entanglements were to be avoided at all costs. The Establishment Clause made it broadly illegal for the government to promote a theocracy or promote a specific religion.
At its core, abortion is a religious issue, period, full stop. One only needs to consider the demographics on either side of the of the battle lines that have been formed. The anti-abortion side is composed of mainly, but not exclusively, older, white, conservative, evangelical Christians – basically the core of trump’s base. These people have taken it upon themselves that they, and they alone, are the arbiters of all things involving life, sex, and death. In their mind, they are empowered by God to decide who can marry, who can have sex, what if any, birth control can be used, and whether a woman has the right to make decisions about her own body and health. Basically, by their construction, it is God’s will that no sex is permitted except for heterosexual, married couples who intend to conceive a child and that after conception, a pregnant woman becomes subordinate to their religious restrictions that must be imposed and enforced by the state.
To outlaw abortion is, therefore, yet another step towards the establishment of a theocracy by imposing a precept of a specific religion. The Supreme Court upholding Roe v Wade in 1973 by invoking the right to privacy implied by the Due Process Clause of the Fourteenth Amendment was a punt. No doubt deciding Roe by correctly invoking the Establishment Clause would have been too radioactive. But as we now see nothing was ever really decided by either Roe or, subsequently, Casey.
The anti-abortion movement in the US is decidedly in the minority. Since 1975 making abortion illegal under any circumstance has never polled higher than 34% (https://news.gallup.com/poll/1576/abortion.aspx). Yet the anti-abortion crusaders have been systematically plotting and planning since the Roe decision to impose their will on the majority by any means necessary. And they appear to be on the cusp of making that happen. But again, nothing will be decided. Do the anti-abortion zealots really think the majority will simply accept a reversal of Roe? Do the anti-abortion supporters really think that people will accept a likely close, 5-4 a decision by a diminished, partisan Supreme Court packed with justices specifically selected to overturn Roe and nominated by a president who did not win the popular vote? Overturning Roe will only serve to diminish the Supreme Court even more than it already is because ultimately the court’s legitimacy depends on the premise that people implicitly agree to be governed by their decisions. This is why the principle of stare decisis is so fundamental to the law. Roe was decided with a 7-2 majority. It should require a similar vote before casting aside a half century of settled law in a wink of an eye.
The Founding Fathers were right. All religious entanglements were to be assiduously avoided knowing that it could tear the country apart. And indeed it is doing exactly that.
Bob Ingersoll says
James,
Your words and understanding of the basic precepts of the Constitution are so appropriate that it is hard to understand why so many others can not see it. It seems so self evident. How can so many Senate Republicans ignore the implications of what they are doing, have planned to do, and will do in the future, when it comes to individual rights. Even if the Constitution did not talk about specific privacy rights, how can those same representatives work s hard to remove the ones they don’t like?
John Dean says
Thank you for this substantive comment. The Alito draft opinion is issued as the decision, it will be interesting in seeing whether the dissenting opinions adopt the argument you are making.