The judgment states that there is no right to abortion since abortion is not “deeply rooted” nor “implicit in the concept of ordered liberty”. With it, 50 years of the existence of a right have now been curtailed so unceremoniously, with no sliding scale or bulwark.
WHEN the United States Supreme Court’s draft opinion in Dobbs versus Jackson Women’s Health Organization overturning Roe versus Wade (1973)was leaked earlier this year, it signalled a crushing blow to every person with a uterus. Some believed that the leak was intended to change the U.S. Supreme Court’s opinion on the issue; prompting furious debate owing to its take on a long-fought-for right – the right to privacy, and through its tributaries, the right to abortion. Though few hoped that the leaked opinion may not make up the majority, it has now become certain that the protections previously guaranteed by Roe have been brusquely snuffed out.
Every American lawyer knows that rights enumerated in the United States Constitution are few and far between, having been authored at a time when slavery was very much legal, and women could not vote. However, the Due Process clause of the 14th Amendment to the U.S. Constitution gave rise to all the rights we see today – the right to marry; the right to not be discriminated based on sex, race or national origin; the right to work – by allowing courts to protect those rights which the American society has found to be fundamental, despite its lack of enumeration. Substantive due process is the principle that the Fifth and Fourteenth Amendments to the U.S. Constitution protect fundamental rights from government interference. This fundamentality requires the court to see whether a right is “deeply rooted” within American history and tradition and that that right is “implicit in the concept of ordered liberty”.
Through the 14th Amendment, several rights have come to claim their eternal place as a constitutionally-protected right. The U.S. Supreme Court in Roe held that, couched in the right to privacy, was the right of a woman to make decisions which concerned her intimately – the right to decide what to do with her body. Any state law which prohibited abortion without respect to the stage of pregnancy or other interests violated that right. This position was further clarified in Planned Parenthood versus Casey (1992), which also reaffirmed the central holding of Roe, holding that any undue burden on a woman’s right would also violate Substantive Due Process.
As I break down this judgment, I also warn you of the breakdown of substantive due process, a constitutional principle in which every other right finds its lifeblood.
In a 6-3 majority, the Supreme Court declared on June 24 that Roe and Casey had been overturned. Justice Samuel Alito delivered the opinion of the court, which was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice John Roberts filed an opinion concurring in the judgment. The three dissenters, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan authored a joint dissent – not common for dissenting opinions – displaying the gravity of their dissatisfaction and distaste for the reasoning of the majority.
The majority states there is no right to abortion since abortion is not “deeply rooted” nor “implicit in the concept of ordered liberty”. To substantiate this, Justice Alito goes into whether abortion was intended by the Constitution-makers to be a fundamental right. He first opens with an exercise of engaging with 13th-16th century British common law, in which abortion was still considered a crime, and uses this to state that during the passage of the 14th Amendment, almost all American states and territories also considered abortion to be a crime up until the day Roe came into being. Therefore, he opines, abortion is not “deeply rooted” in American traditions at all. He also adds an appendix of outdated state statutes from the 17th– 18th centuries stating that abortion was a crime to pad his argument. He coolly ignores the last 50 years of American tradition, during which women have been relying on this right, with a third of all U.S. states having enacted pro-abortion laws.
The U.S. Supreme Court in Roe held that, couched in the right to privacy, was the right of a woman to make decisions which concerned her intimately – the right to decide what to do with her body. Any state law which prohibited abortion without respect to the stage of pregnancy or other interests violated that right. This position was further clarified in Planned Parenthood versus Casey (1992), which also reaffirmed the central holding of Roe, holding that any undue burden on a woman’s right would also violate Substantive Due Process.
Given that the “deep-rootedness” of a practice is not limited to pre-Constitutional mores, this line of reasoning is exceedingly opportunistic. If the 17th century was when Constitutional principles were forged, the rights of black people, women or anyone who was not envisioned by the ratifiers of the 14th Amendment would never have become protected by law. By looking back, it is trying to assess women’s right to abortion against a time when women were denied legal personhood, could not vote or own property. The dissent responds by stating that this absurd logic could undo other substantive due process cases, since the right to an abortion ultimately came from the right to conception.
Secondly, the majority holds that the Supreme Court is returning the decision whether to permit abortion to the state legislatures, and that it is righting the wrongs of Roe. However, in a case decided just the day before, the Supreme Court, again by the same 6-3 split, interfered with the New York state’s decision to regulate gun control, showing exactly how the majority shifts its position on neutrality when it suits its agenda.
In an almost laughable let-them-eat-cake line, Alito closes stating, “women are not without political power”, and can vote and run for office if they want to legislate for abortion.
One point of note is that the majority assures us that other cases decided on substantive due process – namely Griswold versus Connecticut (1965), Obergefell versus Hodges (2015) and Lawrence versus Texas (2003) (judgments protecting the liberty of married couples to buy and use contraceptives without government restriction, protecting contraception, extending the fundamental right to marry to same-sex couples, and decriminalizing sodomy, respectively) – are not on the chopping block, differentiating abortion from them as a “unique act” which “terminates life”.
However, segueing into Justice Thomas’ concurrence, one is not put at ease by this assertion in the least. Justice Thomas, who has cited himself 21 times in a seven-page concurrence, clearly takes aim at the cornerstone of Constitutional rights, stating unequivocally that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.”
Justice Kavanaugh, in his concurrence, plays the neutral card, stating “On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution…leaves the issue for the people and their elected representatives to resolve through the democratic process… this Court also must be scrupulously neutral.” The dissent calls out this fallacy, rightly pointing out that the Court is anything but neutral when leaving these decisions to the states.
If the 17th century was when Constitutional principles were forged, the rights of black people, women or anyone who was not envisioned by the ratifiers of the 14th Amendment would never have become protected by law.
Chief Justice Roberts’ is the only concurrence which seems unsure about the direction taken by the majority. He writes that judicial restraint should have been employed when considering the right to an abortion, and notes that the effect of overturning Roe would need to be taken into account, given the reliance placed on it by millions of women presently. According to him, the question before the court at present, on the challenged Mississippi law banning abortion post-15 weeks, did not require Roe and Casey to be revisited on the issue of whether a right to abortion exists. His concurrence proclaims:
“[t]here is a clear path to deciding this case correctly without overruling Roeall the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”
But even more powerful, in my opinion, is his analysis of the precedents used by the majority to overrule Roe: Brown versus Board of Education of Topeka (1954), West Virginia State Board of Education versus Barnette (1943) and West Coast Hotel Co. versus Parrish (1937). Chief Justice Roberts drills them down, explaining how those cases overruled earlier ones. Brown was a completely unanimous judgement; Barnette was a case where it overruled a previous decision delivered three years previously, with three judges from the previous bench having second thoughts. The third, West Coast Hotel, was the last case in a long line of precedents which heralded a substantial shift in the American outlook towards an unregulated market. Chief Justice Roberts notes that Dobbs has none of these circumstances, and that no matter how one slices it, overruling Roe is a “serious jolt” to the existing status quo.
The joint dissent’s quiet fury is apparent from the first word to its last. Justices Sotomayor, Breyer and Kagan begin by noting that the right to abortion and the right of a woman to decide her own future, had been enjoyed for the past 50 years, protected by Roe and Casey. They note that Roe understood well the divisiveness of the abortion issue, yet still struck a balance: it held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health.
The dissent notes that this judgement will have severe consequences, quoting American demographic data and existing state legislation. Several states have already enacted trigger laws which would not allow abortion even in cases of rape or incest or fetal impairment. They do not have to allow it even if there is risk to the life of the mother.
The dissent also draws attention to the poor, who will not be able to travel out of state to get an abortion, unlike richer women. States can even restrict medications. Some states already want to punish those who go to other states for abortions, creating a very stressful medium for a pregnant person.
The dissent also fires back against the majority suggestion that Roe and Casey were outliers, pointing to a swathe of judgments which relied on them, and clearly opines that “they were embedded in core constitutional concepts of individual freedom and the rights of equal citizens to shape their lives”. It staunchly defends Roe and Casey, noting that both carefully considered the countervailing interests of the woman’s right to choice and the State’s interests, and adopted a balancing test, giving appropriate attention to the woman’s right to individual freedom.
In fact, the majority does not address the individual rights of the woman at all. The dissenters also remind them that the ratifiers of the 14th Amendment to the U.S. Constitution did not even believe women to be full and equal citizens at par with men. They remind us that the “point of a right is to shield individual actions and decisions ‘from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’” It criticises the majority for ignoring the risk to a woman’s life while discarding existing standards, noting that there is now no limitation as to when the right to life of a woman should kick in.
The dissent notes that Roe understood well the divisiveness of the abortion issue, yet still struck a balance: it held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health.
In closing, the dissent recalls Casey: people rely on their ability to control pregnancies to make life decisions of where to live, how to allocate financial resources, and how to approach relationships. Abortion access provides a solution where contraception fails, or in cases of rape or incest. With this decision, the court “diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life”, as per the three dissenting judges.
They close the dissent “[w]ith sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” The joint dissent gathers the last of its pain and anger here, using “we dissent” instead of the more typical “we respectfully dissent”.
For me, the decision reflects the change in the composition of the Supreme Court now more than ever. The conservative majority did not like Roe, it did not want Roe, and it took the first opportunity to send Americans back into a time void of reproductive autonomy, staredecisis be damned. It weighs heavily on me that 50 years of the existence of a right have now been curtailed so unceremoniously, with no sliding scale or bulwark.
This decision will require some quiet reflection on our parts as to where American society is headed, the challenges it will pose to other rights, and how much more important it is, now more than ever, to participate as citizens in the political process.