Abortion is Not a Fundamental Right Guaranteed by the United States Constitution
An Analysis of the United States Supreme Court’s Initial Decision in Dobbs v. Jackson Women's Health Organization
by Christian, civil trial attorney, RL Johnson
In 1973 when Roe v Wade,[i] was decided, abortion at any stage of a woman’s pregnancy was illegal in 30 states. [ii] Indeed, in an “exercise of raw judicial power”[iii] the Roe decision rendered moot the political wrangling that went on prior to Roe essentially making abortion upon demand the law of the land. Stated differently, “a State may not constitutionally [protect fetal life before ‘viability’[,]” which the Roe Court deemed most critical at the end of the second trimester.[iv]
In the acrimonious—and often bitter—years that followed the Roe decision, our high court has had occasion to cite the Roe decision no less than 127 times in separate opinions. In all 127 cases, the U.S. Supreme Court has held firm to the doctrine of stare decisis, a legal principle of requiring that litigated issues are to be determined according to precedent. That is to say, if a court cannot remain consistent, then there’s increasingly little in the rule of law upon which people can rely. Among the many cases decided since Roe is Planned Parenthood v. Casey,[v] which substituted Roe’s trimester scheme with a new rule that forbade a State from imposing an “undue burden” on a woman’s right to have an abortion.[vi]
Dobbs v. Jackson Women's Health Organization, ___ U.S. ___ (20__);
No 19-1392 | (Leaked 5/2/22)
In its initial [leaked] decision in Dobbs v. Jackson Women's Health Organization, ___ U.S. ___ (20__), Supreme Court Justice Samuel Alito in a well-reasoned and painstakingly written opinion resolves the issue: Are all pre-viability prohibitions of elective abortions unconstitutional?[vii]
Writing for the Court, Justice Alito first takes the reader through the storied history leading up to and following the Roe decision. Justice Alito notes that 26 states have expressly asked the Supreme Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions. However, not until the Dobbs decision did any State’s effort bare fruit. Indeed, in the Dobbs Court held that “Roe and Casey must be overruled.”[viii]
The earth shattering reversal of Roe and Casey came about as a result the State of the Mississippi’s request for the Supreme Court to uphold the constitutionality of its 2018 law prohibiting abortions, with limited exceptions, after 15 weeks’ gestational age. Specifically, the Mississippi statute at issue provides, in pertinent part, that:
“(4) Abortion limited to fifteen (15) weeks’ gestation except in medical emergency and in cases of severe fetal abnormality.
(a) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report to be filed with the department as set forth in paragraph (c) of this subsection. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the community.
(b) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
MS Code § 41-41-191(4)(a)-(b)(2018)
In 2019, a district court in Mississippi enjoined the law, and the United States Court of Appeals for the Fifth Circuit Court upheld that iction holding that the 15-week ban is unconstitutional.[ix]
Mississippi asked the Supreme Court to reconsider and overrule Roe and Casey thereby permitting each State to regulate abortion as its citizens see fit. On the other side of the divide, the Solicitor General of the United States asked the Supreme Court to either reaffirm or overrule Roe and Casey. That is to say, the Solicitor General—apparently convinced of the metaphysical certitude of Roe and Casey—argued that “no half-measures are available and [the Supreme Court] must either reaffirm or overrule Roe and Casey.”[x]
Adopting the Solicitor General’s black and white logic, the Supreme Court held that “Roe and Casey must be overruled.” The Supreme Court reasoned that our Constitution makes no explicit or implicit reference whatsoever to abortion and no such provision may be found in the Due Process Clause of the Fourteenth Amendment to the Constitution. [xi] The Court notes that when the Fourteenth Amendment was ratified by Congress on July 9, 1868, abortion was a crime in three quarters of the states in the Republic and was unlike other traditions deeply rooted in our history (e.g., marriage and sexual relations) in that abortion destroys “fetal life” what Mississippi’s statues refers to as an “unborn human being.”[xii]
The Dobbs Court goes on to perform a post-mortem on Roe, which is rightly characterized as “an egregious wrong from the start.” Indeed, the Court firmly asserts that “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”[xiii]
In resolving the issues of the constitutionality of elective abortion, the Court employs a three-step analysis. First, the Court explains the standard used in other cases to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. In sum, this comes down to the following question: Does the fourteenth amendment protect the right to an abortion? Second, the Court examines whether a “right” to be protected under the Fourteenth Amendment is rooted in our National history and tradition such that it merits an assignment of the essential component known as “ordered liberty.” At bottom, this analysis may be restated as follows: What’s the test for determining if a liberty interest is rooted in our National history and tradition? Finally, the Court considers whether a right to obtain an abortion is supported by its other precedents.
Does the fourteenth amendment protect the right to an abortion?
In short, the Supreme Court concluded that the Constitution, properly understood, does not protect the right to an abortion. In reaching this conclusion the Court points out the glaringly obvious and brutally honest fact that neither the Roe nor Casey Courts saw fit to invoke the Fourteenth Amendment as a justification for abortion: Rather, Roe and Caseyenshrined the so-called right to an abortion in the “right to privacy” that Justice Douglas contended was among the imaginary "penumbras," created by "emanations” from the specific guarantees found in the Bill of Rights.[xiv]
That is to say, we have Justice Douglas to thank for the fanciful notion that a "right to privacy" emanates from "penumbras" of rights including the First, Third, Fourth, Fifth and Ninth Amendments.[xv] Thus, much like earth or the moon casts their shadows over an area experiencing a partial eclipse, the right to privacy from the State can be inferred as something that the Constitution is intended to protect. Consequently, stripped of its astronomical babble, it is painfully clear that Justice Douglas simply found a bizarre basis for the so-called right to privacy because there is no such right to privacy mentioned in or emanating from the Constitution.
Further, the Supreme noted that unless something smacking of invidious discrimination can be found in a State’s regulation of a medical procedure such as abortion, it does not warrant the highest level of scrutiny applied by courts to government actions or laws. That is, something that would require the State to prove that: (1) there is a compelling state interest behind the challenged policy; and, (2) that the law or regulation is narrowly tailored to achieve its result. Thus, the Dobbs Court said that laws prohibiting abortion are governed by the same standard of review as any other health and safety measure.[xvi]
What’s the test for determining if a liberty interest is rooted in our National history and tradition?
The Dobbs Court said that the Due Process Clause protects two categories of substantive rights. The first category consists of right plainly enumerated in the first eight amendments to the Constitution. The second category—where abortion would be found if it was a protected right—consists of things not mentioned anywhere in the Constitution, but somehow “deeply rooted in [our Nation’s] history and tradition” such that they are essential to our Nation’s “scheme of ordered liberty.” [xvii] Here, the Court is careful to note that in interpreting the Fourteenth Amendment’s reference to ”liberty,” we must not confuse what the Amendment actually protects with passionate “views about what Americans should enjoy.”[xviii]
Next, after carefully exploring the history of abortion from the 16th century notion of the “quickening” and through the pre-Roe criminalization of abortion in nearly all cases unless done to save or preserve the life of the mother, the Court rejected the notion that abortion is a liberty interest deeply rooted in the history or tradition of this Nation. [xix] Rather, the Court pointed to the nearly unbroken history of criminalization that bears this out. Thus, the proponents of abortion were reduced to arguing that changes in society require the recognition of a constitutional right to an abortion. However, the defenders of abortion failed to provide the Court with a legal reason (i.e., a reason enumerated or rooted in the Constitution) for exercising its authority over societal predilections.
Is the right to an abortion supported by Supreme Court Precedent?
Finally, citing wrongly decided cases,[xx] the Court explained that it is far more important that a matter be “settled right,” rather than simply settled, the Dobbs Court took a look at its poor decisional history. Next, the Court listed five factor that weigh strongly in favor of overruling Roe and Casey. Namely: the nature of the previous Court’s error; the quality of the prior Court’s reasoning; the “workability” of the rules the former Court’s decision posed on the country; the disruptive effect on other areas of the law; and, the absence of concrete reliance. [xxi]
In short, the Dobbs Court said that all of the Roe Court’s reasoning was “exceedingly weak” such that when the CaseyCourt revisited Roe nearly 20 years later, it declined to either defend or preserve the heart of Roe’s reasoning. [xxii] Indeed, the Casey Court simply abandoned the so-called privacy right—to which Roe was moored—in favor of a Fourteenth Amendment Due Process Clause theory. Further, the Casey Court failed to remedy what is likely Roe’s most glaring deficiency: The arbitrary notion of viability.
Thus, Roe is unworkable because it cannot be applied in an understandable, consistent, and reliable manner.
Finally, holding that the Supreme Court has neither the authority nor the expertise to adjudicate impassioned and conflicting arguments about the effects of abortion rights on the lives of women or to arbitrate conflicting arguments about the status of the fetus, the Dobbs Court returned the issue of abortion to State legislative bodies where it belongs. There, because abortion is not a fundamental right guaranteed by the Constitution, States should employ a rational-basis review to any challenges to its legitimate regulation of abortion within its boundaries.
This Dobbs decision notwithstanding,
abortion is and will remain the sacrament of the liberal;
some states and the federal government will undoubtably continue to fund abortions unceasingly; and,
abortion defenders will be energized and will use this decision as a rallying cry to promote more even un-Godly behavior
Nevertheless, we should praise God that Truth has won the day and at least some on the Supreme Court have the courage to resist the temptation to write laws, engage in social engineering, or stray from the text of the Constitution.
[i] Roe v. Wade, 410 U.S. 113 (1973). [ii] Dobbs v. Jackson Women's Health Organization, ___ U.S. ___ (20__); No 19-1392, (Leaked 5/2/22), p. 2. [iii] Roe, 410 U.S., at 222. [iv] Dobbs, ___U.S., at 2-3. [v] Planned Parenthood v. Casey, 505 U.S. 833 (1992). [vi] Casey, 505 U.S., at 567. [vii] Jackson Women’s Health Org. v. Dobbs, Pet. for Cert, at i. [viii] Dobbs, ___ U.S., at 5. [ix] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 274, 277 (5th Cir. 2019) (Dobbs I). [x] Dobbs, ___ U.S., at 5. [xi] Dobbs, ___ U.S., at 5. [xii] Dobbs, ___ U.S., at 5. [xiii] Dobbs, ___ U.S., at 6. [xiv] See Roe v. Wade, 410 U.S. 113, 129 (1973) citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). [xv] Griswold v. Connecticut, 381 U.S., at 381. [xvi] Dobbs, ___ U.S., at 10-11. [xvii] Dobbs, ___ U.S., at 11. [xviii] Dobbs, ___ U.S., at 13. [xix] Dobbs, ___ U.S., at 13-34. [xx] E.g., Plessy v, Ferguson, 163 U.S. 537 (1896), that overruled Brown v. Board of Education, 347 U.S. 483, 488 (1954) which repudiated the separate but equal doctrine that allowed Stated to maintain racially segregated school and other facilities. [xxi] Dobbs, ___ U.S., at 39. [xxii] Dobbs, ___ U.S., at 51.
• Christian Legal Society
• The Library of Congress’ website:
• Civil Pro Se Forms
• Federal Rules of Civil Procedure
• Public Access to Court Electronic Records (“PACER”) system
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