SUPREME COURT OVERTURNS ROE v. WADE: Dobbs v. Jackson Women’s Health Organization (June 24, 2022) | Eastern North Carolina Now

    In fact, the Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions had been offered (in Roe) as potential homes for an implicit constitutional right.

    Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the 'liberty' protected by the Fourteenth Amendment's Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment's Equal Protection Clause, but that theory is squarely foreclosed by the Court's precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications. (Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures).

    The 2022 Supreme Court did not agree with the reasoning of Roe.

    Next, the Court had to determine if the right to obtain an abortion is rooted in the Nation's history and tradition and whether it is an essential component of 'ordered liberty.' The Court's decisions have long held that the Due Process Clause protects two categories of substantive rights - those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is 'deeply rooted in our history and tradition' and whether it is essential to this Nation's 'scheme of ordered liberty.'

    "In interpreting what is meant by 'liberty,' the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court's own ardent views about the liberty that Americans should enjoy. Note that the term liberty alone provides little guidance. For this reason, the Court has been reluctant to recognize rights that are not mentioned in the Constitution.

    And so, again, the 2022 Court could not find that the right to abortion is not deeply rooted in the Nation's history and tradition.

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    Guided by the history and tradition that map the essential components of the Nation's concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.

    "Roe either ignored or misstated this history, and Casey declined to reconsider Roe's faulty historical analysis. Respondents' argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe's claim that it is 'doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,' but the great common-law authorities-Bracton, Coke, Hale, and Blackstone-all wrote that a post-quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was "unlawful" and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law's failure to criminalize abortion before quickening, but the insistence on quickening was not universal, and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so."

    Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy and Casey described it as the freedom to make "intimate and personal choices" that are "central to personal dignity and autonomy," ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed 'potential life.'

    But the people of the various States may evaluate those interests differently. The Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.

    Finally, the Court had to consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.

    Once again, the 2022 Court concluded that the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. 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 is different because it destroys what Roe termed 'potential life' and what the law challenged in this case calls an 'unborn human being.' None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court's conclusion that the Constitution does not confer such a right does not undermine them in any way.

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    The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision. It "reduces incentives for challenging settled precedents, saving parties and courts the expense of endless re-litigation." It contributes to the actual and perceived integrity of the judicial process. And it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past.

    But stare decisis is not an inexorable command and "is at its weakest when the Court interprets the Constitution," Some of the Court's most important constitutional decisions have overruled prior precedents. [See Brown v. Board of Education, (overruling the infamous "separate but equal doctrine" established in Plessy v. Ferguson]

    The Court's cases have identified factors that should be considered in deciding when a precedent should be overruled: For one, the nature of the Court's error: Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side (those who sought to advance the State's interest in fetal life) could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.

    Second, the quality of the reasoning: Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. Roe's failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee and did not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases, the Court found support for a constitutional right of personal privacy. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.

    None of these decisions involved what is distinctive about abortion, which is its effect on what Roe termed "potential life." When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were "consistent with," among other things, "the relative weights of the respective interests involved" and "the demands of the profound problems of the present day." These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.

    An even more glaring deficiency was Roe's failure to justify the critical distinction it drew between pre- and post-viability abortions. The arbitrary viability line, which Casey termed Roe's central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem with any such argument is that viability has changed over time and is heavily dependent on factors - such as medical advances and the availability of quality medical care - that have nothing to do with the characteristics of a fetus. When Casey revisited Roe almost 20 years later, it reaffirmed Roe's central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment's Due Process Clause. The controlling opinion criticized and rejected Roe's trimester scheme and substituted a new and obscure "undue burden" test.

    Casey, in short, either refused to reaffirm or rejected important aspects of Roe's analysis, failed to remedy glaring deficiencies in Roe's reasoning, endorsed what it termed Roe's central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe's status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.

    Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable-that is, whether it can be understood and applied in a consistent and predictable manner. Casey's "undue burden" test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the "undue burden" test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey's new rules surfaced in that very case. The experience of the Courts of Appeals provides further evidence that Casey's "line between" permissible and unconstitutional restrictions "has proved to be impossible to draw with precision." Unfortunately, Casey has generated a long list of Circuit conflicts. Continued adherence to Casey's unworkable "undue burden" test would undermine, not advance, the "evenhanded, predictable, and consistent development of legal principles."

    In the final analysis, according to a majority of the Supreme Court, the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey needed to be overturned as being egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division."

    As Alito wrote in his opinion, in which he was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.: "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely - the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.' It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

    EXCERPTS from the OPINION:

    The following are excerpts and commentary from the opinion issued by Justice Samuel Alito, which apparently hadn't changed much from the leaked version:

    Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe's faulty historical analysis. It is therefore important to set the record straight.

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    We begin with the common law, under which abortion was a crime at least after "quickening"-i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.
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