[This is a guest post by Aakanksha Saxena.]
The United States Supreme Court delivered its decision in Dobbs v. Jackson on 24th June 2022, holding that there was no fundamental right to abortion guaranteed by the US Constitution, and that decisions about regulating abortion were to be left to the legislatures of the US states. There are five opinions: the majority judgment, three separate concurring opinions, and one dissenting opinion (signed by three justices).
All the opinions deal with various questions – was the Roe Court correct when it recognised the unenumerated right to abortion? Does stare decisis demand following Roe, Casey, and therefore demand upholding the right to abortion? Do the basic principles of liberty and equality require that women be granted bodily autonomy?
This post shall attempt to unravel these threads, and ultimately posit that Chief Justice Roberts’ separate opinion in Dobbs is correct on each of these questions, and ought to have obtained the approval of the Court.
The background to Dobbs
The background to Dobbs is decades of threat, both explicit and implicit, to the decision in Roe v. Wade. Roe held that as part of the right to privacy, a woman has a fundamental right to decide whether to carry a pregnancy to term, subject only to regulations which may be placed by the State in furtherance of its legitimate interests in protecting the health of a woman and foetal life. Roe therefore judicially recognised a fundamental human right, which is otherwise unenumerated in the United States Constitution. This right was held to be enshrined in the 5th Amendment Due Process Clause which provides that no one shall be “deprived of life, liberty or property without due process of law.”
The Roe Court also laid down the bright line viability test as the barometer to determine whether a restriction on the right to abortion was valid. This test revolved around whether a foetus was viable outside the womb in order to justify the State interest in protecting it.
A call to overturn Roe was made but turned down by a 5-4 majority in Planned Parenthood v. Casey. The Casey Court however, rejected the viability test, and instead held that the right to abortion stemmed from liberty under the 14th Amendment Due Process Clause, and restrictions on this right were to be tested on an ‘undue burden’ standard. The 14th Amendment came into effect after the Civil War, and is the bulwark of protections of rights against interference by the states.
In any event, Casey cemented Roe as precedent about the recognition of the right to abortion. More relevant to this post is the fact that Casey is also a precedent about precedent and formulated a test to be met by future courts to overrule what is otherwise binding precedent by virtue of the doctrine of stare decisis. Critics of Casey state that it in fact diluted Roe by negating the viability bright line – and they are wrong. Casey, by narrowing Roe but upholding the unenumerated right recognised by Roe, secured Roe’s position and furthered its core holding qua abortion rights into present day – that is, until Dobbs.
A small but relevant detour – the US Supreme Court grants certiorari to limited cases each year, each of which requires to be heard on a constitutional question, and each of which is admitted on this question alone. The question on which certiorari was granted in Dobbs was consideration of the constitutional validity of the Gestational Age Act enacted by the State of Mississippi (“the Act”). Enforcement of the Act had been enjoined by the District Court and affirmed by the Fifth Circuit Court of Appeals. It was specifically urged at the time of granting certiorari that Petitioners did not require Roe to be overruled; a judgement in its favour simply required reconsideration of the bright-line viability test. To be clear – the State of Mississippi sought a clarification whether abortion prohibitions before ‘viability’ are always unconstitutional (see, majority opinion @ pg. 8). Only after certiorari was granted, meaning basically that the Supreme Court would hear the case, did the State launch into a full-frontal assault on Roe and its essential holding.
The majority opinion
The majority opinion (authored by Alito, J., joined by Thomas, Gorsuch, Kavanaugh, and Barrett JJ.) opens with a moral, not a legal debate, laying the foundation for the Court to overturn Roe. What follows is an overbroad discussion of whether the US Constitution confers a right to abortion. At the risk of repetition – this had not been the question before the Court. The Court had already recognised and protected the right to abortion; all it was originally called upon to do, was to examine the validity of a restriction on this right by the State of Mississippi.
There are several reasons marshalled for not adhering to stare decisis without actually engaging with the contours for the same: that the Roe Court was “remarkably loose in its treatment of the constitutional text” since while holding that the right to abortion was part of the right to privacy, it didn’t specifically identify which part of the Constitution provided for either of these rights. The majority further argues that in any event, this was repudiated by the Casey Court when it held that the right to abortion stemmed from the 14th Amendment Due Process Clause.
The Court applies Timbs v. Indiana, to argue that when a right is to be recognised under the 14th Amendment Due Process Clause, it must be deeply rooted in the history and tradition of the United States and be essential to the nation’s ‘scheme of ordered liberty’. The opinion however descends into what must have been meant by the 14th Amendment as ‘liberty’ – at the time it was ratified. This culminates with the majority echoing the words of Thornburgh v. American College that “Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.”
The 14th Amendment was ratified and adopted on 9th July 1868. It defined “citizens” and “voters” as male. In addition to being unable to vote, discrimination against women was very much part of the social and national fabric in the USA – in equal wages and hiring, in federally supported education programs, being excluded from the draft, and so on. In fact, it was only in 1923 that the draft ‘Equal Rights Amendment’ was proposed to the Constitution – its deadline was extended multiple times, and it has not yet been ratified. Incremental progress over the years has brought women into the 21st century in the USA. Despite this history of recognition of women’s rights from 1868 till Dobbs, the majority though it fit to go back to 1868 and the position in 1868, to ascertain whether the right to abortion was required to be protected. In fact, as recognised by the Court itself, most states had criminalised abortion at all stages. This is, on a plain reading, a leap unfathomable to the basic belief that the Constitution was envisaged as a document meant to evolve with time and the march of civilisation. This is, as aptly put in the starkest, most truthful line in the Dobbs dissent reflective of the harsh reality that “people did not ratify the Fourteenth Amendment. Men did.”.
The concurring opinions
It is natural that the dangers of the majority opinion are highlighted and attacked in the dissent. This is why the post will now turn to the criticism of the majority opinion by 2 of the 3 concurring opinions, i.e., those authored by Chief Justice Roberts and Justice Kavanaugh. Kavanaugh’s opinion claims to remain neutral on the question of abortion; that the Court’s decision does not outlaw abortion in the Unites States. This concurring opinion also opines that Casey, though relevant to the stare decisis analysis, cannot dictate the question of overruling Roe. This is a convenient sidestepping of Casey which is a precedent about precedent itself, for which the only reason forthcoming is that post-Casey as well, several states have enacted abortion legislations which are contrary to Roe. The opinion balances the precedential value of Roe and Casey and holds that it does not outweigh the political will of these anti-Roe states and their laws. Was this a factor outlined by Casey in its four-pronged test? No.
Justice Roberts’ opinion as well as his stare decisis analysis and application are clear from the quote he uses from Washington State Grange v. Washington State Republican Party (quoting Ashwander v. TVA), and which seems apposite to reproduce – “… the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case”.”
This, it is submitted, is the essence of stare decisis. A doctrine which demands an adherence to precedent to enable consistency and robustness, and requires deviation to be tested and limited to a narrow path. Applying stare decisis especially as laid down by Casey, Roberts J. implores the majority not to conflate the 2 distinct rules of constitutional law laid down by Roe – one, the recognition to the constitutional right to abortion, and second the bright line viability rule formulated basis the State’s interest once a foetus become viable outside the womb. These, he correctly records, are 2 independent rules, and the abandoning of the latter in Casey and subsequent case law did no manner of harm to the validity and binding nature of the former. This is critical – he correctly opines that an independent holding which identifies the mode in which a constitutional right is to be treated ought not to be regarded as part and parcel of the right itself. The viability test raises questions of arbitrariness given that there arise issues in determining and pin-pointing at what stage viability occurs. By way of an example, the Court may recognise the constitutional right to euthanasia / physician assisted suicide, and then also lay down a test on how this right is to be effectively realised, given the State interest in protecting life. A test may be formulated basis how terminal a patient’s illness has to be, in order to avail this right. These are two discrete holdings, and the latter can easily be detached and struck down by a subsequent court, while still preserving the former.
The record of overruling precedent cited by the majority
A large plank of the majority decision was that the SCOTUS itself had plentiful times overruled precedent, and veered off the course of stare decisis. The majority chose to cite 3 instances, all of which are distinguishable on one fundamental basis, i.e. the doctrine of non-retrogression. The 3 judgements cited by the majority all deviated from precedent so as to recognise a new right. However, the Dobbs Court deviates from precedent to achieve the opposite – striking down a previously protected right. This is directly contrary to the doctrine of non-retrogression, which recognises that protection may be granted to rights which are otherwise unenumerated, but once such rights are protected, the protection cannot be taken away or revoked.
Brown v. Board of Education overruled Plessy v. Ferguson and repudiated the doctrine of “separate but equal” i.e., racial segregation in public education. This judgement Roberts, CJ says cannot be compared with Brown which was a unanimous, pithy judgement of the Court. This is relevant since a long-winded and splintered judgement like Dobbs discloses the conflict within the Court and renders the judgement itself vulnerable. The conflict is in fact made clearer from Thomas J.’s opinion which proclaims that other rights under the 14th Amendment require reconsideration – a proclamation that other members of the majority take pains to distance themselves from. Brown on the other hand was a resounding rejection of segregation after reviewing the history of public education since the ratification of the 14th Amendment. The Court in one voice declared that “separate but equal” legislation was unconstitutional and had no place in public education, and the right to a good, equal education was fundamental to democratic society. Several cases in the run-up to Brown had already challenged segregated schools furnishing a judicial basis to depart from precedent, as contrasted from Kavanaugh J.’s argument that several states had enacted laws violative of Roe, i.e. furnishing a legislative basis to defeat precedent.
Adkins v. Children’s Hospital of DC, which held that laws requiring minimum wages to be paid to women was violative of the 5th Amendment’s Due Process Clause, was overruled by West Coast Hotel Co. v. Parrish. This was brought about in a sea-change in economic and social conditions that necessitated a departure from precedent. Up until then, the Lochner era meant that in the garb of freedom of contract, SCOTUS invalidated innumerable worker and consumer protection laws.
Lastly, West Virginia Bd. Of Ed. v. Barnette overruled Minersville School Dist. v. Gobitis, holding that public school students could not be compelled to salute the national flag if it violated religious beliefs, and that consequently schools did not have the right to expel students if they refused to salute the national flag on these grounds. Barnette invoked both freedom of religion and an individual’s freedom of speech—and that freedom of speech included the right not to be forced to speak against one’s will.
The common thread therefore is that all 3 previous incidents of overruling cited by the majority to support their overruling of Roe, were instances where the Court by overruling precedent, recognised a right. I think it is bears relevance that no rights that were previously protected were being eroded or erased.
Slippery slopes recognised by the Court
There are a few slippery slopes identified in Dobbs. This is yet another reason that Chief Justice Roberts’ approach ought to have been adopted, keeping the judgement’s scope confined and narrow.
The majority holds the view that a broad right to bodily autonomy would somehow justify or encompass fundamental rights to “illicit drug use, prostitution, and the like”. It is telling that the majority chooses to compare the right of a woman to control her own body to activities that have been considered largely illegal / unlawful and have been criminalised across jurisdictions over the years. Further, Dobbs only serves to provide the foundation in the larger movement to expand state surveillance and eventually perhaps erode the right to privacy – a campaign that sex workers have been fighting for decades.
The most chilling is the outright call for reconsideration of rights such as the right to obtain contraceptives, right to privacy in sexual acts, right to same-sex marriage, in the Thomas concurrence. This approach will descend into regression of unimaginable proportions – which is why the other majority judges are keen in distancing themselves from the view.
The other slippery slope is identified by the dissent, with respect to what kinds of legislation would now be possible post-overruling Roe: laws compelling women to carry to full term pregnancies that are the outcome of rape, or compelling women to carry to full term foetuses with known terminal illness, or even laws criminalising the act of travelling across state lines to obtain abortions. There is no answer to this in any of the opinions penned by the majority judges.
Returning the power to decide abortion-related policy to “the people” while at first blush seems to be correct, the structure of federalism in the US means that very often, state legislatures do not perfectly or even adequately represent the will of the people. Further, the deviation from stare decisis to revoke protection to a right which had been recognised and protected for decades is, in no small measure, a cause for alarm. Not only has the Supreme Court retrogressed and undone years of progress as regards the constitutional right to abortion, but the deviation from precedent has also now reopened the gamut of protections which were similarly afforded by substantive due process.
Let there be no mistake – overruling Roe was a major plank on which Trump rode to presidency, which set in motion the chain of events that led to Dobbs. SCOTUS was packed with judges who were appointed simply to overrule Roe, despite some them in fact professing loyalty and deference to Roe and Casey in their congressional hearings. But the politics surrounding the SCOTUS aside, a reading of the opinions displays a sheer wanton disregard for basic principles of constitutional law that now stands available to support similar overruling of settled constitutional precedent. It will do well to heed to the warnings by way of slippery slopes contained in the opinions – none of those rights remain safe.