In the case of Dobbs v. Jackson Women's Health Organization, government overreach and faithful adherence to the Constitution are central to Justice Alito's seismic Supreme Court opinion on the right to abortion. To be clear, Alito's majority 6-3, 79-page opinion does not "take the right to abortion away from the American people," as erroneously stated by President Biden on Friday.
The United States Constitution limits the power of the federal government through enumerated powers. The right to abortion is not one of those enumerated powers. Therefore, the deliberative process concerning important matters like abortion must be sent back to the individual states to reflect the will of the people. Alito begins his opinion with solemnity stating abortion is a "profound moral issue on which Americans hold sharply conflicting views." However, Justice Alito ultimately reaffirms the Constitution and the States' rights to decide.
Alito Affirms the Enumerated Powers of the Constitution
Paragraph two of Alito's decision goes to the core of the matter. Concerning the 1973 Roe v. Wade decision, Alito states:
"Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law)."
Alito finishes by stating the information in the Roe opinion "concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature." In other words, rules that would have been deliberated at the State level.
Alito takes issue with the Roe opinion because it "abruptly" ended the political process of more local deliberation and caused great upheaval in the country. "It imposed the same highly restrictive regime on the entire Nation," continues Alito, "and it effectively struck down the abortion laws of every single State." The effect of the "exercise of raw judicial power," quotes Alito from Justice Byron White's dissent in Roe, and "sparked a national controversy that has embittered our political culture for a half-century."
Twenty-six states, says Alito, have now "expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions." Roe was revisited in 1992 in Planned Parenthood of Southeastern Pa. v. Casey. While Casey failed to conclusively settle the case on the constitutional right to an abortion, it did throw out Roe's "trimester scheme." It also "substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an "undue burden" on a woman's right to have an abortion. However, the decision, said Alito provided "no clear guidance about the difference between a "due" and an "undue" burden."
Where does Abortion Stand/The Hill/https://thehill.com/changing-america/respect/equality/3535994-common-questions-about-the-supreme-court-overturning-roe-v-wade-answered/
As highlighted by Alito, the Dobbs case asks the Court "to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as "viable" outside the womb." Dobbs further requests that States be allowed to "regulate abortion as citizens wish."
Ultimately, Alito writes, "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." The issue with arguing the Fourteenth Amendment, in this case, is that "abortion," says Alito, "does not fall within the category of a right that is "deeply rooted in this Nation's history and tradition." He adds that when the Fourteenth Amendment was adopted, "three-quarters of the States made abortion a crime at all stages of pregnancy." Moreover, he essentially states that abortion is like no other protection of "liberty" noted by the Fourteenth Amendment because it impinges upon "fetal life" and the "unborn human being."
Alito shows awareness of the contemporary arguments for abortion with his exploration of the Fourteenth Amendment and the liberties Americans think they should enjoy. The Justice extensively explores the meaning of "liberty" and the "Equal Protection Clause" outlined in the Fourteenth Amendment. Casey, he says, "[boldly asserts]" that the "abortion right is an aspect of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment."
"Ordered Liberty" is Alito's precise definition of choice because it is "rooted in our Nation's history and tradition." In that vein, Alito argues abortion is never mentioned in the Constitution or mentioned therein as a "right of privacy," a right often argued by proponents of abortion, due to Roe. While abortion-rights activists often invoke the Equal Protection Clause, neither Roe nor Casey "invoke this theory" because precedents hold that "abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications."
In other words, quoting Gelduldig v. Aiello, Alito writes the "goal of preventing abortion" does not constitute "'insidiously discriminatory animus' against women." With that conclusion, the only thing left to explore is the precise definition of "liberty." Here Alito argues we must "guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty Americans should enjoy." He further states, "[t]he Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty.' When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to abortion."
In the end, opines Alito, "Ordered liberty sets limits and defines the boundary between competing interests," striking a balance between the "interests of a woman who wants an abortion" and the interests of the unborn child.
Roe, concludes Alito, was "egregiously wrong from the start" with "reasoning that was exceptionally weak." Some of Alito's opinion to return to "heed[ing] the Constitution" is rooted in his belief that Roe has been "damaging" to the national discourse. He states that rather than bringing a "national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division."
Alito highlights that the "dissent is candid that it cannot show that a constitutional right to abortion has any foundation, let alone a" 'deeply rooted'" one, "in this Nation's history and tradition." He also points out that the dissent acknowledges that abortion "was illegal at common law at least after quickening" and our nation has a "long-standing history of criminalizing abortion at all stages of pregnancy."
Five Justices Concur
Justices Thomas, Roberts, Barrett, Gorsuch, and Kavanaugh concur with Alto's opinion. Justice Thomas upheld the opinion that there "is no constitutional right to abortion," and he further emphasized that it would be "farcical" to think that the Framers would understand the Due Process Clause as one that would "protect a right to abortion."
Kavanaugh concurred that the decision by the Court "does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion." Justice Kavanaugh also reestablished the limits of the Court, emphasizing that the Court has no "unilateral authority to rewrite the Constitution" to "create new rights and liberties" based on personal "moral or policy views."
Notably, Roberts states he "would take a more measured course," saying Alito's ruling—while virtuous—is unnecessarily dramatic and consequential. Specifically, Roberts said he would have upheld Mississippi's 15-week abortion ban without overturning Roe v. Wade. He also argued he would have "waited to decide whether tighter restrictions on abortion were constitutional." Ultimately, Roberts concluded:
"[The] Court's decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."
Ultimately, Roberts seemed to be focused on the difficult question of determining the viability of the fetus in his argument, stating:
"I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks."
Dissent from Justices Breyer, Sotomayor, and Kagan
The joint dissent was impassioned, centering around issues like the discarding of "balance" from the majority. They argued the lack of respect for the autonomy of women concerning such a "substantial life decision." Also, the belief that going forward, a court can "force a woman to give birth, prohibiting even the earliest abortions" and the financial burden on women who seek an abortion, among other arguments.
The fear as expressed by the dissenting judges concerning women being left to "States' devices" centered at times around their worry over enforcement. The judges argued that some States might "compel women" to carry a fetus with "severe physical anomalies to term" or they may elect to enforce "draconian restrictions."
"States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child. Enforcement of all these draconian restrictions will also be left largely to the States' devices. A State can, of course, impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today's decision, a state law will criminalize the woman's conduct too, incarcerating or fining her for daring to seek or obtain an abortion."
The three judges believe the handing of such decisions to the States is but "cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure." They go on to postulate that States may even attempt to prevent or "block" women from "traveling out of state to obtain abortions" or even "receive medications from out of State."
The justices believe the ruling "curtails women's rights" and restricts their status as "free and equal citizens." Their parting statement communicates their profound sentiment:
"The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new "doctrinal school," could "by dint of numbers" alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here...With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."
At approximately 12:30 EST, President Biden delivered his remarks on the decision. Often arguably incendiary, he did at one point urge the American people "no matter how deeply they care about this decision, to keep all protest peaceful. Peaceful, peaceful, peaceful. No intimidation. Violence is never acceptable. Threats and intimidation are not speech. We must stand against violence in any form. Regardless of your rationale."
However, earlier in his speech, he seemed to mislead the nation when he stated that the "Court didn't limit it (abortion). It simply took it away" Later, President Biden added, "It's a realization of an extreme ideology and a tragic error by the Supreme Court, in my view. The Court has done what has never done before, expressly take away a constitutional right."
What is Next?
At the time of this writing, four states have revised their decisions on abortions. Activists across the country are threatening to cause trouble, including Jane's Revenge, which has allegedly promised to encourage a "night of rage" beginning at 8 p.m. Friday. The group has allegedly already vandalized pregnancy centers and other pregnancy resource centers nationwide. On Thursday, the Supreme Court gave a win to proponents of the Second Amendment in its majority gun carry opinion in New York State Rifle & Pistol Association v. BRUEN.