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.