The Supreme Court has concluded a very eventful term. Among the most significant opinions issued was the 6-3 ruling in Dobbs v. Jackson Women’s Health Organization. The central holding of Dobbs is the Constitution does not prohibit the States from regulating abortion. The opinion is neither explicitly Pro-Life nor pro-abortion; it is a pro-democracy opinion. It overrules Roe and Casey, correcting two of the most significant errors the High Court ever made.
Justice Alito wrote the opinion for the court, joined by associate justices Thomas, Gorsuch, Kavanaugh and Barrett, followed by Chief Justice Roberts who agreed in judgement.
From the majority opinion- “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Alito’s opinion takes abortion regulation away from an unelected court and returns, and returns is the key word here, to the people to decide this controversial question through popular elections. That’s democracy. Keeping Roe is undemocratic. Before Roe, a political process handled abortion and now our political processes are more open than ever. The opinion says, “In the years prior to [Roe], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the Nation, and it effectively struck down the abortion laws of every single State.“
Roe reads like proposed legislation, not like a Supreme Court opinion. It created a system of trimesters where there could be some, all, or no regulation from a state. It receives special status and special reverence from its supporters. The dissent in Roe called the Court’s opinion “raw judicial power.”
The reasoning behind Roe is that there is a right to privacy from government regulation of abortion based on a combination of rights. But as the opinion details, this perceived right is an invention not grounded in solid constitutionality stare decisis, absent in the understanding of the ratification of the 14th Amendment, and not part of our nation’s history.
Alito offers examples, and the appendix to the majority opinion offers greater details, of how states had always regulated abortion and concludes, “a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
The Court created national abortion law and the supporters of Roe cheer it because they like the outcome. Few, if any, cheer the process which created national abortion law. Any court creating law is unconstitutional.
Jeffrey Rosen, who describes himself as a “pro-choice critic of Roe” called the Court’s opinion in Roe “a political and constitutional mistake when it was first decided, largely because of its aggressive unilateralism.”
Then came Casey, another mistake, which agreed that the reasoning on Roe was erroneous, as it needed to depart from Roe’s reasoning and testing to create a new standard based on a new finding. This was wrong then and it is wrong today.
From Dobbs– “Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision, and no subsequent case has relied on that factor.”
Mostly orchestrated by Justice O’Connor, Casey argued that the court can’t overrule Roe because it would cause legitimacy issues for the Supreme Court. In Justice Scalia’s dissent in Casey, he writes, “whether it would “subvert the Court’s legitimacy” or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.”
In Roe we lost the democratic process to regulate abortion as the electorate sees fit, and in Casey we lost the ability to question losing that process. Dobbs returns what was lost in Roe and Casey.
Peggy Noonan, writing in The Wall Street Journal in March, encouraged ending Roe– “And if Roe is indeed overturned, God bless our country that can make such a terrible, coldhearted mistake and yet, half a century later, redress it, right it, turn it around. Only a thinking nation could do that. Only a feeling nation could do that.” Hear, hear.
