Dobbs v. Jackson Women’s Health Org.
Friday, the Supreme Court has overturned the landmark decisions of Roe v. Wade and Planned Parenthood v. Casey, eviscerating nearly 50 years of precedent recognizing abortion as a fundamental right. See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Court’s 213-page opinion in Dobbs v. Jackson Women’s Health Organization was released this morning, and flatly states, “The Constitution does not confer a right to abortion.” Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 1 (S. Ct. June 24, 2022).
So, what does this really mean?
First, this case overturns prior precedent, including Roe and Casey, which ensured women’s freedom and equality by safeguarding “a woman’s right to choose for herself whether to bear a child.” Dobbs, No. 19-1392 at 148, (Breyer, Sotomayor, Kagan, JJ., dissenting). Roe v. Wade was the first case in which the United States Supreme Court declared a fundamental right to an abortion. See Roe, 410 U.S. at 154. Then, in Planned Parenthood v. Casey, the Court affirmed that the government cannot control a woman’s body and articulated new a standard for permissible regulation of abortions. See Casey, 505 U.S. at 837. The Court’s decision today in Dobbs eliminates that standard along with recognition of abortion as a protected right under federal law.
Dobbs was initiated in 2020 when Jackson Women’s Health Organization, an abortion clinic in Mississippi, filed a lawsuit challenging Mississippi’s Gestational Age Act in federal court. Dobbs, No. 19-1392 at 1. The suit alleged that the Act violated Supreme Court precedent establishing abortion as a constitutional right. Id. The Mississippi law imposes a 15-week restriction on abortions which clearly defied the standard established in Casey. See id. In Casey, the Court adopted an Undue Burden Standard, which prohibited states from enacting regulations which would create a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Casey, 505 U.S. at 837, 860. That is, states could not pass laws restricting abortion at any point in the pregnancy before the fetus could survive outside of the womb, i.e., “fetal viability”. Id. The Supreme Court has never set a hard and fast rule for when viability may be established, but in Casey, the Court found that marker to be around 23-24 weeks. Id. at 860. A whopping 8-9 weeks later than the Mississippi law allows for abortions.
Because the Dobbs decision declares that abortion is not protected under federal law, this means that regulating abortion is left up to each individual state. See Dobbs, No. 19-1392 at 44-45. In the Court’s view, the people of each state should be free to regulate abortion through their elected representatives and following the political process. Id. In many states, this ruling will trigger highly restrictive laws that have been silently waiting to go into effect until the day federal abortion protections were overturned.
Although today’s ruling may be viewed singularly in the context of abortion rights, its impact will inevitably be far-reaching. Justice Thomas implied as much in his concurring opinion, ominously stating, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Id. at 119 (Thomas, J., dissenting).
- In the 1965 case of Griswold v. Connecticut, the Court first recognized that there existed a broad right to privacy implied in the constitution. Griswold v. Connecticut, 381 U.S. 479 (1965). That right, the court found, protects the inner workings of a marital relationship from state intrusion, specifically, a married couples’ right to use contraceptives.
- In 2003, in the case of Lawrence v. Texas, the Supreme Court broadened the scope of the right to privacy identified in Griswold in overturning a Texas law that criminalized same-sex intercourse. Lawrence v. Texas, 539 U.S. 558 (2003). The Court held that the implied right to privacy also protects an individual’s right to engage in private consensual homosexual activity.
- In 2015, in the case of Obergefell v. Hodges, the Court recognized marriage as a fundamental liberty protected under the constitution. Obergefell v. Hodges, 576 U.S. 644 (2015). That right must be applied equally to same-sex and opposite-sex couples. In this landmark decision, the Court described marriage as a profound personal choice that is “central to individual dignity and autonomy.” Id. at 663.
Today’s majority opinion and Justice Thomas’ concurrence provide a stark warning of what may be to come: previous decisions recognizing liberty interests which are not enumerated in the constitution are likely to be revisited and potentially reversed by this Court.
While the Supreme Court has the power to invalidate laws and realign constitutional analysis temporarily, the ideological makeup of the court is an ever-shifting pendulum. The present Court’s opinion of your constitutional rights is just that – a judicial opinion – subject to future reconsideration like all others before it. We continue to believe, as the dissent from Dobbs correctly states, that “respecting a woman as an autonomous being, and granting her full equality, mean[s] giving her substantial choice over this most personal and most consequential of all life decisions.” Dobbs, No. 19-1392 at 148 (Breyer, Sotomayor, Kagan, JJ., dissenting).