By Amir Aliyev and Kleoniki Mastorakou
On June 24, 2022, the Supreme Court of the United States decided the case of Dobbs v. Jackson Women’s Health Organisation (2022) which granted states the right to ban abortions. This landmark decision overturned a nearly 50-year-long precedent of constitutionally protecting abortions as established under Roe v. Wade (1973) and reinforced by Planned Parenthood v. Casey (1992). Although some have applauded the decision, others have erupted into protest. Despite being overturned, polls consistently show that most Americans are in favour of the decision in Roe and support legal abortions. So with a decision that counters popular sentiment and precedent, how did the 6-3 majority arrive at this ruling? Critics of Roe assert that support for abortions greatly varies in each state and therefore indicates an issue that must be decided by state legislators. Was this decision really based on a different interpretation of the Constitution and its powers, or was the ruling the product of a Supreme Court riddled with political bias?
Supreme Court of the US
Before examining the details of the case, it is necessary to observe the formation of the US Supreme Court and where the alleged politicisation of the judicial branch stems from. In the US, there are nine Supreme Court Justices. They generally hold lifetime terms, even though they can retire. Supreme Court Justices are nominated by the President and are then confirmed by the Senate with a simple majority. Therefore, the political leanings of potential Justices are publicly displayed, since it is quite common for Presidents to choose a judge that best represents their political views. The procedure for confirmation is stunted as only a simple majority is needed to confirm a judge. This leads to some judges being unfairly denied confirmation, while other more extreme nominees are allowed to gain a position as a Justice. This effect can be observed with the last three Supreme Court nominees. In February 2016, Justice Antonin Scalia died, leaving a vacant spot on the bench during then-President Obama’s last year in office. However, because Republicans (the opposition to Obama and the Democrats) controlled the Senate, they refused to even hold a hearing for Obama’s nominee, arguing that a Supreme Court Justice should not be chosen just before the Presidential election. This Senate pushback resulted in newly-elected President Trump appointing Neil Gorsuch, who was later confirmed. Then, to fill a retired Justice’s position, Trump confirmed Brett Kavanaugh, who was questioned for sexual harassment during his hearing. He was also confirmed by a Republican majority Senate, with a slim majority of 50-48-1. Finally, during Trump’s final year in office, Ruth Bader Ginsburg died, leaving another open spot for Trump to fill in the Supreme Court. This occurred despite the position only becoming vacant in September, a mere two months before a Presidential election. Since the Senate was still controlled by Republicans, Trump’s third nominee, Amy Coney Barett, was also confirmed regardless of the previous refusal to the Obama administration. The accusations of bias and political manipulation of the Dobbs decision emanate from this hypocrisy. These claims are reinforced when realising that all three Trump’s nominees stated during their Senate confirmation hearings that Roe was an established precedent. Yet, these same three Justices were part of the majority of six that overturned that very same “precedent”.
Rationale in Dobbs
a. Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment can guarantee rights not mentioned in the Constitution if they are “deeply rooted in this Nation’s history and tradition [and] implicit in the concept of ordered liberty”. A central part of the majority’s argument was that for the right to abortion to be constitutional, the history of the US must demonstrate that it has been a traditional right supported by the people. However, as the minority rightly concedes, the right to abortion did not exist 200 years ago. The right to abortion should not be expected to do so.
Law is dynamic. For it to have any chance of being even remotely fair, it must develop as society does. It should be adapted to accommodate social changes. Including a provision that only enables a right to be constitutional if it has been deeply rooted in the Nation’s tradition for say the last 200 years practically guarantees stagnation and assures injustice. To grasp this, one need only consider that the right for women to vote in the US was ratified in 1920, only a 100 years ago. Women’s rights today look very different to women’s rights in 1788, when the American Constitution was ratified. That should be the case. A society should improve with time. This has indeed happened in the US, as they recognise more women’s rights today than in 1788. So how is it possible that the Supreme Court Justices argue that the most important historical fact is how abortion was regulated when the Fourteenth Amendment was ratified? How is it possible that they can argue that women’s rights should be viewed through the same lens today as they did in 1788 when women were thought of as lesser? What should have been done instead would be to follow the usual common law course, by observing the general rights found in the Constitution and determining whether an analogy can be made to recognise the right to abortion as a modern application. This type of analogy is even more necessary in the Fourteenth Amendment, where rights, such as the right to privacy, are intended to be applied in a flexible manner. As decided in Obergefell v. Hodges (2015), which established the right to marry a person of the same sex, the Fourteenth Amendment should not be strictly interpreted and there should not be specific reference to historical practices. When new information demonstrates there is a tension between the fundamental constitutional protections and a legal restraint, then one should consider a possible infringement on the issue of liberty. If we had followed the history of American tradition, then same-sex marriage as well as interracial marriage would have been disallowed. Yet, the right to interracial marriage has been established since Loving v. Virginia (1967). As argued in Obergefell if “rights were defined by who exercised them in the past, then received practices could serve as their own continued justification” even if there is a conflict with “liberty” and “equality” as they are now understood. The interpretation of the Constitution should be based on the spirit of the social conditions of the time.
It is important to understand this was the aim of the drafters of the Constitution. They realised they could not grasp all potential rights which would be appropriate in the many years to come. Hence, they drafted it in a way that provides for flexibility and application to different scenarios. This is the usual way the common law operates. There is a general law. One analyses how it has been applied in previous cases. Then, one examines whether an argument can be made for a new right to also fall within the ambit of this law. As this same Court has written only a few years ago, “[t]he Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries”. That is what they achieved. Yet in 2022, the Supreme Court Justices are found overly focusing on procedure and bureaucracy, specific historical examples, and traditional views, trumping justice in the name of following the law to the letter, in essence ignoring its spirit and stripping away, as a result, women’s fundamental rights.
b. Applying the constitutional approaches
Transparency is a prerequisite of justice. For the legal system to function well, legal procedures should be clearly and honestly articulated. On issues that are as political and divisive as the right to abortion, neutrality is demonstrated by following a similar rationale or constitutional interpretation across all cases heard. However, this correlation of a consistent legal approach to the Supreme Court’s judgements is absent.
Established legal doctrines and interpretive legacies are an integral part of the Supreme Court. Every judge, and consequently every set of judges should follow a specific approach in their constitutional interpretation. There are four main constitutional approaches: first, originalism, an interpretation based on what the Founding Fathers intended, second, textualism, emphasising the text, not their intent, third, pragmatism, choosing the interpretation with the least negative impact, and fourth, stare decisis, following precedent. There are other approaches and judges will often use a variety depending on the case. However, each Supreme Court term adopts its own defined style of judgement. The Supreme Court’s sitting judges from 2000-2010 were known for their relaxed approach to the federal government’s growth, permitting the expansion of multiple federal agencies and the powers practised by the executive branch. On the other hand, the period between 2010 and 2016 saw a more stringent approach to government with the constitution being interpreted in a more textualist style. Maintaining a certain type of reasoning is advantageous as consistency in how the Supreme Court interprets and applies the law displays impartiality and objectivity in the decision-making process. It emphasises that each judge not only follows precedent, but also abides by their own personal precedent to demonstrate their political neutrality. Yet, the past string of Supreme Court rulings display an unsystematic style of judgement that utilises contradictory constitutional suppositions depending on the subject matter of the case.
The Supreme Court highlighted three principal constitutional interpretations in their majority opinion in Dobbs: originalism, stare decisis, and states’ rights/small government. Originalism stems from the majority’s inclination to incorporate “historical traditions” by arguing that a right to abortion was not constitutionally protected under the Fourteenth Amendment. As the court remarks that the right to an abortion is “not deeply rooted in the Nation’s history and tradition”, this originalism is streamlined into an argument centred around precedent. This can be seen as the majority opinion cites “traditional” common laws at the state level, for example “[b]y the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy”. They also used authorities such as Hale and Blackstone to reinforce the opinion that rights not expressly protected by the constitution, must rely on historical tradition. Finally, the majority opinion applies the states’ rights and small government principle to argue that the rulings of Roe and Casey invaded state jurisdiction and decided an issue which belongs to the states.
Contradictions
a. Previous cases
Even though these constitutional approaches are often used in landmark decisions, there are multiple errors in how they have been interpreted. Although taking into consideration the historic purpose of the constitution as well as the intentions of the drafters are both important for decisions, it is unrealistic and unreasonable to apply such a standard to an inherently modern issue, such as abortion. The majority opinion calls out Roe for “fail[ing] even to note the overwhelming consensus of state laws in effect in 1868”. However, the clear problem is that in 1868, abortions were akin to externally harming the womb through arbitrary methods. Medical abortions in 1973, when Roe was decided, were fundamentally different. The same problem is present in the majority’s arguments that are based on the legal theories of Hale, Blackstone, and Henry de Bracton. Hale and Blackstone published in the 17th and 18th centuries and the latter lived in the 1200s. Bracton perceived women as inferior to men while Hale believed in “legal rape” and considered witchcraft and educated women as “common law crimes”. Regardless of their other contributions to the legal and governmental ideals of the US, such outdated and barbaric beliefs cannot justifiably be used towards a modern day women’s rights issue.
This lack of acknowledgment of the scientific gap in abortion facts also plagues the majority opinion’s precedent rebuttal. Even though the majority opinion mentions stare decisis, it does not apply the principle in the manner most commonly recognised by legal scholars. As stated by the dissenting opinion “[w]hen overruling constitutional precedent, the Court has almost always pointed to major legal or factual changes undermining a decision’s original basis”. The majority opinion contends that Roe incorrectly countered the established precedent of the time which was the state’s right to criminalise abortion. Nonetheless, Roe was more than justified in overturning that precedent because between the 19th and 20th century, there were fundamental and scientific changes as to how abortion was defined. There has been no such change in fact or science between the 20th and 21st century. There has only been a shift in politics.
Furthermore, the majority opinion’s argument based on states’ rights, although a necessary doctrine in its own right, is used dangerously in the present context. Under Roe, states still maintained a significant amount of control over abortions and multiple states were constitutionally allowed to pass fairly restrictive abortion laws. These included laws that forced physicians to spread misinformation or others that imposed uneccessary building standards for abortion clinics as stipulated by state laws in Texas, North Carolina, and Alabama. Despite the extent of states’ rights, fundamental rights, including basic healthcare, have to be protected federally, at least minimally, as established under Brown v. Board of Education (1954), the case that overturned Plessy v. Ferguson (1896). Meanwhile, Dobbs permits states to completely abolish abortions, valuing states’ rights over citizens’ rights. The explanation the majority offers is eerily similar to the Plessy decision which established the principle of “separate but equal” segregation. When deciding Plessy, the Supreme Court argued that states had the right to decide whether schools should be segregated because a large portion of Americans disagreed with mixed classes and had “different ideals”. Essentially, the Supreme Court constitutionally protected a state’s supposed right to racist practices simply because a section of America still believed in those racist practices. The majority opinion of Dobbs stated that “[Casey] short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe”. The similarity is uncanny.
Plessy also used the “historical tradition” prong of the Dobbs majority opinion arguing “[the Supreme Court] is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order”. Both decisions rely on the argument that because the Fourteenth Amendment does not explicitly protect or stipulate that such rights should be available, one can examine the traditions of the country to deduce whether the right should indeed be federally protected. As if in sync, both cases follow this explanation by citing older “state common law” as benchmarks for what the current constitutional law should be. The only detail more ironic is the fact that the majority opinion of Dobbs expresses that Plessy was incorrectly decided. So why is the same, condemned reasoning applied in Dobbs? Political motivations seem to be the underlying factor for the decision in Dobbs, and this is also evident in subsequent Supreme Court decisions.
b. Subsequent cases
In Kennedy v. Bremerton School District (2022), a high school American-football coach publicly prayed with his team and invited others to join them after finishing the game. This occured in the middle of the field with the majority of the audience still in the stands. The district offered the coach a place to pray privately and only gave him a bad performance review. However, the coach sued and the majority opinion ruled that the district had violated his First Amendment right. In another case, Carson v. Makin (2022), involving the state of Maine and their tuition assistance program, the court ruled that Maine limiting financial assistance towards religious schools violated the First Amendment. In both cases, the Supreme Court not only curtailed the 18th century precedent of the Establishment Clause (a principle that ensures separation between the Church and the State), but also significantly minimised both the school’s and the state’s discretion in governing their educational systems.
The contradictory rulings continue: West Virginia v. Environmental Protection Agency (2022) reversed a 50-year precedent of federal carbon restrictions simply because Congress, through the Clean Air Act of 1970, did not provide specific enough direction of the EPA’s power – an argument that erases almost a century’s worth of regulatory law. Finally, the most overtly biased Supreme Court decision: New York State Rifle & Pistol Association v. Bruen (2022). This ruling abolished a 108-year-old gun law that required citizens to “demonstrate a special need for self defence” when applying for a concealed carry licence. Concealed carry refers to carrying hidden firearms in public places such as streets or parks. The majority opinion in this case specifically disregarded the states’ rights and “historical traditions”’ approaches as cited in Dobbs and instead opted to utilise the Second Amendment to support the majority’s explanation. This Amendment of the American Constitution, which declares the necessity of a “well regulated militia” while stating that the right of people to have “arms shall not be infringed” is equally ambiguous as, if not more, than the Fourteenth Amendment that was deemed “too broad” by the majority in Dobbs. Nonetheless, the Supreme Court perceives the Second Amendment as powerful enough to bar individual state restrictions but does not grant this same capacity to the Fourteenth Amendment.
The purpose of mentioning these cases is not to necessarily declare them wrongly decided or wrongly reasoned. Rather, it is to display that the Supreme Court’s reasoning in Dobbs was only applied in that case, while contradictory interpretations are applied in other cases, despite involving similar constitutional issues and having been decided within the same week. If the Supreme Court ruled to maintain the New York gun law and allowed the school and state to exercise their own power over their educational systems, then at least an approach of small government and originalism could be legitimately argued and proved when applying it to the overturning of Roe. In reality, however, the Supreme Court picks and chooses when to apply certain points. In Dobbs, the majority claims that the historical, societal and legal understanding of abortions should be reflected in the law. On the other hand, in Bruen, they ignore that the historical, societal and legal perception of guns in America actually involved heavily restricted firearms that were only rarely owned. Although it is a history that is often forgotten and overlooked, guns in early America were heavily regulated under a national gun registration in the 1700s and there were multiple federally-enacted gun laws such as the National Firearms Act of 1934. The consistency is shattered as the originalist approach used in Dobbs is not applied to the way the majority interprets the Second Amendment. In Dobbs, the majority argues that the Founding Fathers had no intention to protect abortions under the Fourteenth Amendment. Yet, the Founding Fathers could not have possibly anticipated the Second Amendment would protect the types of modern and dangerous weapons in use today, with the extent of the protection that the Second Amendment grants remaining unclear. Consequently, if the Supreme Court wishes to assert that abortions should not be protected because the original Constitution did not intend to protect them, then the Supreme Court must also believe that modern semi-automatic rifles and concealed carry should not be constitutionally protected. It is impossible to reconcile the majority’s argument that the court cannot force states to uniformly regulate abortions, with the fact that the court obligates states to uniformly pay their schools, regardless of necessity or curriculum content. The very issue is the lack of consistency which is indicative of a court that is less focused on establishing an objective precedent and more motivated by pushing forward a certain agenda.
Consequences
a. Real-world
This decision strips away the freedom of the one who needs it most. This has brought the US 60 years back. This means that a 20-year-old woman today, in 2022, has fewer rights than her 20-year-old grandmother did in 1980. Moreover, even though Dobbs has crucial consequences for all women, the impact seems to vary based on their socio-economic status. For example, maternal mortality will be increased by 21%, with white women suffering an increase of 13% and black women suffering a significant 33%. There will be discrepancies in the consequences of this decision based on race, social and economic status. Middle-class or upper-class women will generally have access to funds for out-of-state abortions. Working-class women will not. Women who are unable to travel to another state to have an abortion are the ones who will suffer the most. This is because “women living below the federal poverty line experience unintended pregnancies at rates five times higher than higher income women do, and nearly half of women who seek abortion care live in households below the poverty line”. Furthermore, despite Dobbs, no further provisions have been ordered to be developed with the aim of either fostering contraception or helping struggling parents raise their children. The Supreme Court may have rendered abortions much harder, yet it has not provided assistance for struggling parents. Most people who need paid family leave are still unable to access it, with only 8% of low-earning workers able to obtain it.
b. Legal
Refusing the right to abortion is poised to have a detrimental impact on womens’ rights and to potentially also eradicate other fundemental human rights. The Supreme Court has created links between the right to abortion and other rights for decades. Such rights include purchasing and using contraception, under Griswold v. Connecticut (1965), as well as same-sex intimacy and marriage under Lawrence v. Texas (2003). The majority argues that the right to abortion is distinguished from other rights as it relates to human life. Yet, is that a valid distinction? Not if one considers the essence of the majority’s argument; they are claiming that the right to abortion should not be constitutionally protected as it is not rooted in American history. This same rationale could be used for same-sex rights and contraception, both non-existent as rights in American tradition. As the minority argues only one of the following can be true; “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure”. As previously explained, common law, which is the legal system prevalent in the US, is developed through case law. The reasoning used in Dobbs can now be used in new cases as it has become established precedent. This way, fundamental rights can be annihilated, changing the core of American society and the rights available to the people. The majority claims Dobbs will not lead to such changes. Yet, Justice Thomas argues Griswold, Lawrence and Obergefell should be overruled. It was not too long ago when some of the Justices in the majority agreed Roe constituted an established precedent. Can one trust they will not move on to overrule even more fundamental human rights?
Abortions are no longer constitutionally protected, creating a gaping hole in women’s healthcare, mortality and rights. The ruling clearly came as a shock to most. Nevertheless, Roe was imperfect and the political reluctance to congressionally codify abortion protections at the federal level, together with other uniquely American political factors, resulted in the Supreme Court ruling as it did. In the past month, both pro-life and pro-choice supporters have each put forth their arguments in support of their respective opinions, as have politicians and commentators around the world. However, it is essential to also view this decision purely through the same lens as this case was judged with: a legal one. Objectivity and neutrality are the cornerstones of a well-functioning and fair judicial system and for an issue as controversial as abortions, a truly unbiased rationale is a sine qua non. This was the purpose of this article: to focus on and scrutinise the legal explanations provided. Even though not always attainable, the validity of the arguments was examined with as little bias as possible, separated from the conflicting interests and emotion that the political arena inherently presents. Unfortunately, the Supreme Court majority seems to have failed to provide adequate legal reasoning to justify the overturning of Roe and Casey. It has assuredly fallen on the wrong side of history. It simply takes a dispassionate and objective legal analysis to realise the only thing that was truly “egregiously wrong” in this case, was the ruling itself.
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Having read this I thought it was very informative. I appreciate you taking the time and effort to put this article together. I once again find myself spending way to much time both reading and commenting. But so what, it was still worth it!