SCOTUS| United States’ Constitution does not confer any right to abortion; Roe v. Wade overruled after 49 years

Supreme Court of The United States

Supreme Court of The United States: In a far-reaching decision concerning an American woman’s right to abortion, the Court held that the Constitution of United States does not confer any right vis-à-vis abortions. This judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib­iting abortion. Roe and Casey arrogated that authority”.

In a separate concurring opinion John Roberts, CJ., agreed with the majority on the point that the rule of viability as propounded in Roe and Casey, should be discarded as the SCOTUS seriously erred in adopting via­bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense”. He however, also stated that, “None of this requires the dramatic step of altogether eliminating the abortion right first recognized in Roe”.

Facts and Legal Trajectory of the Case

The re-consideration of Roe v. Wade came into the picture when Jackson Women’s Health Organisation [respondents] challenged Mississippi’s Gestational Age Act. The legislation provided that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly 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.”

The respondents contended before the Federal District Court that Mississippi’s law violated SCOTUS’ prec­edents establishing a constitutional right to abortion, particularly Roe and Casey. The District Court granted summary judg­ment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates SCOTUS decisions forbidding States to ban abortion pre-viabil­ity. The Fifth Circuit affirmed the decision.

The petitioners finally came before the Supreme Court defending the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.

Majority Observations

The majority opinion was delivered by Justice Samuel Alito in which Chief Justice John Roberts, Clarence Thomas, Brett Kavanaugh, (concurring), Neil Gorsuch and Amy Coney Barrett, JJ., also joined. The majority considered Roe and Casey on following points-

  • The majority deliberated whether the Constitution, if properly un­derstood, confers a right to obtain an abortion. It was observed that Fourteenth Amendment’s refer­ence to “liberty” protects a particular right. However, the Constitution makes no express reference to a right to obtain an abortion, but several con­stitutional provisions have been offered as potential homes for an im­plicit constitutional right. The Court pointed out that “The Bench deciding Casey grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend­ment’s Due Process Clause, but that theory is squarely foreclosed by the Court’s precedents, which es­tablish that a State’s regulation of abortion is not a sex-based classifi­cation and is thus not subject to the heightened scrutiny that applies to such classifications”.
  • The majority based its next observations on the History and Traditions of the Nation”. It was pointed out that the right to abortion is not deeply rooted in the Nation’s history and tradi­tion and the Due Process Clause pro­tects two categories of substantive rights – rights guaranteed by the first eight Amendments to the Constitution and rights deemed fundamental but are not mentioned anywhere in the Consti­tution. “Historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy”. Citing this reason the majority expressed its reluctance recognize rights that are not men­tioned in the Constitution. “Guided by the history and tradition that map the essential compo­nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor­tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”.
  • Furthermore the Court stated that Roe’s analysis of historical basis of right to abortion was faulty. It was pointed out that American law followed the common law until a flurry of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor­tion a crime at any stage of pregnancy. Thus Roe either ignored or misstated this part of history. The Court observed that instead of seriously pursuing the argument that the abortion right itself has deep roots in history, the supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right- right to privacy. “But the people of the various States may evaluate those inter­ests differently. The Nation’s historical understanding of ordered lib­erty does not prevent the people’s elected representatives from decid­ing how abortion should be regulated”.
  • Finally the majority applied the principles of stare decicis to analyse whether a right to obtain an abor­tion is part of a broader entrenched right that is supported by other precedents. The Court observed that while deciding Roe, none of the decisions cited involved the critical moral question posed by abortion. thus, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. It was pointed out that doctrine of precedents “restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command”.
  • Terming Roe as egregiously wrong and in collision course with the Constitution from the day it was decided, the Court stated that Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. It was further stated that the scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. Another glaring defi­ciency was Roe’s failure to justify the critical distinction it drew be­tween pre- and post-viability abortions.
  • The argument that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause was also rejected by the Court stating that. This decision concerns the constitutional right to abortion only. Nothing in this opinion should cast doubt on precedents that do not concern abortion.

Concurring Opinion of John Roberts, CJ.,

Taking a middle ground approach, Roberts, CJ., stated that overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favour. He also pointed out that SCOTUSabortion precedents describe the right as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further not all the way to viability.  He also stated that. “I am not sure, 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. I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no”.

“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”.

Concurring Opinions of Clarence Thomas and Brett Kavanaugh JJ.,

  • Justice Clarence Thomas’ concurring opinion emphasised on more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. He stated that “substantive due process” is an oxymoron that “lacks any basis in the Constitution.” He stated that the Court should reconsider all of SCOTUS’ substantive due process precedents, includ­ing Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6“Because any sub­stantive due process decision is “demonstrably erroneous, we have a duty to “correct the error” established in those precedents. After overruling these demonstra­bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr­iad rights that our substantive due process cases have gen­erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment”.
  • Justice Brett Kavanugh stated that the Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. The Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer­ican history and tradition.The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre­sentatives to resolve through the democratic process in the States or Congress—like the numerous other difficult ques­tions of American social and economic policy that the Con­stitution does not address”.

The Dissent

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision to be catastrophic. In a scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Some of their salient observations are as follows-

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey well understood the difficulty and divisive­ness of the abortion issue and the Court was aware that Americans hold profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can 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 dissenting Judges pointed out that the majority decision would sound a death knell for women who are not financially strong. It was observed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering. “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 mid­19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
  • Questioning the majority’s historical approach, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges also pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”. The Judges also questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases when in the same vein he urged the Court to reconsider decisions like
  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

Finally the dissenting Judges simply observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.

Decision

With their afore-stated observations the majority concluded that Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in­terest in “protecting the life of the unborn”. These legitimate interests provide a rational basis for the Gestational Age Act.

[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

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