On June 24, 2022, the United States Supreme Court issued an opinion in Dobbs v. Jackson Women's Health Organization, reversing Roe v. Wade and Planned Parenthood v. Casey, returning the issue of abortion to the states and their representatives. Here are some of the reasons the justices gave in the majority opinion for overturning Roe.
Reading these recitals is interesting, because, on the one hand, it shows the error made by the initial judgment, but also the limits of the current judgment.
1. The Constitution makes no reference to abortion
The judgment points out that abortion is not mentioned in the Constitution and therefore 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.”
2. Abortion is not “deeply rooted in the history and tradition of this Nation”
Supreme Court precedents have established that any right not explicitly mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” But “the right to abortion does not fall within this category,” the court concluded.
3. Abortion is “fundamentally different” from related court rulings
Abortion is “fundamentally different” from other decisions related to sex, contraception, and marriage, because it destroys what other court decisions call “fetal life” and what the Mississippi law in question describes as an “unborn human being.” However, “none of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.”
4. Roe did not listen to women's voices on abortion
By preventing the elected representatives of the people at the state and local levels from regulating abortion, the court says that women's voices – whether pro- or anti-abortion – have been silenced under Roe. “Our decision…allows women on both sides of the abortion issue to seek to influence the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” the Dobbs ruling states.
5. States have “legitimate interests” in regulating abortion
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity” if there is “a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
The Court lists these interests to include: “respect and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability,” the decision explains.
6. Roe's reasoning was "exceptionally weak"
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division,” the ruling says.
7. State consensus on abortion existed before Roe
The right to abortion was “entirely unknown in American law” until the latter part of the 20th century, the judgment points out. “Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
8. The Supreme Court cannot settle the abortion debate, but lawmakers can
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the decision said. “The Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise “raw judicial power.”
As it is possible to see, one the one hand, the judgment sets forth clear arguments: the absence of any mention of abortion in the Constitution, the rooting of the country in history, as well as in the objects targeted by the 14th amendment; especially the peculiarities of this question; the weakness of suppressed judgments; and finally the capacity of the States to assess the issues involved.
But on the other hand, the fact that the fundamental problem of the taking of an innocent human life is not addressed in any way, and the declaration of neutrality vis-à-vis future laws, whatever they may be, - for or against the abortion – show the limits of such a decision.
Even if we should rejoice at the new situation, because a large number of abortions will be avoided, at least in the near future, we must note that the fundamental question is not at all resolved.