The Supreme Court has reversed a fundamental constitutional right for the first time in American history. “We hold that Roe and Casey must be overruled,” Samuel Alito wrote for the majority of five right-wing zealots on the court in Dobbs v. Jackson Women’s Health Organization. They held that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”
Since the dawn Roe v. WadeIt was enacted almost 50 years ago. However, its opponents have been waging a meticulous campaign to repeal it. There is no legal or factual basis to repeal the constitutional right of abortion. The Constitution still supports abortion and there have been no factual changes that would support its elimination since 1973. Only the composition of this court has changed. It is now packed with radical Christian fanatics who have no qualms about imposing their religious beliefs on the bodies of women and trans people, notwithstanding the Constitution’s unequivocal separation of church and state.
Alito was joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett in stripping protection of the right to self-determination from half the country’s population.
In their collective dissent, Stephen Breyer, Sonia Sotomayor and Elena Kagan said the majority “has wrenched this choice from women and given it to the States.” They wrote that the court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.”
Noting, “After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenters conclude: “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
During the December oral argument, Sonia Sotomayor expressed concern about how the Supreme Court would “survive the stench” of the overtly ideological overruling of Roe. It will show, she said, that the Court’s rulings are “just political acts.”
By turning Roe And Casey v. Planned Parenthood, the court’s majority confirmed the significance of Sotomayor’s query. The court is engaged in a political act, even though it purports to shift the restriction or abrogation of abortion to the states. It delegated to the politics the fate and rights of a right that was anchored in the Constitution.
“This conservative court defers to the political process when it agrees with its results,” Berkeley Law School Dean Erwin Chemerinsky wrote in the Los Angeles Times, “but the deference vanishes when the conservative justices dislike the states laws.”
As Chemerinsky notes, “there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools.”
Brett Kavanaugh insisted in his concurrence that the Constitution is “neither pro-life nor pro-choice.” Arguing that it is “neutral” on abortion, he claimed that the issue should be left to the states and “the democratic process.” But partisan gerrymandering and the Supreme Court’s evisceration of the Voting Rights Act to the detriment of Democrats and people of color belie the court’s purportedly “democratic” and “neutral” delegation of abortion to the states.
The court found in Roe that abortion was a “fundamental right” for a woman’s “life and future.” It said that states could not ban abortion until after viability (when a fetus is able to survive outside the womb), which generally occurs around 23 weeks. NIneteen years later, the court reaffirmed the “essential holding” of Roe in Casey, saying that states could only place restrictions on abortions if they don’t impose an “undue burden” on the right to a pre-viability abortion.
Alito wrote in Dobbs that since abortion is no longer a fundamental constitutional right, restrictions on it will be judged under the most lenient standard of review — the “rational basis” test. That means a law banning or restricting abortion will be upheld if there is a “rational basis on which the legislature could have thought that it would serve legitimate state interests.”
In issue: Dobbs was Mississippi’s 2018 Gestational Age Act,The law prohibits abortions within 15 weeks of pregnancy. This includes those that occur before viability. The law contains exceptions for medical emergencies cases of “severe fetal abnormality,” but no exception for rape or incest.
The majority said that Mississippi’s interest in “protecting the life of the unborn” and preventing the “barbaric practice” of dilation and evacuation satisfied the rational basis test so its law would be upheld. The court accepts the notion of protecting “fetal life” but nowhere mentions what the dissenters call “the life-altering consequences” of reversing Roe and Casey.
Both Roe CaseyThe court found that the liberty section of Section 2 of the Constitution allowed abortion rights to be protected. Due Process Clause of the 14th Amendment, which says that states shall not “deprive any person of life, liberty, or property, without due process of law.” The court in Roe relied on several precedents saying that the right of personal liberty prohibits the government from interfering with personal decisions about contraception, marriage, procreation, family relationships, child-rearing and children’s education.
The Dobbs Majority of respondents said that the Constitution does NOT mention abortion and that it is not protected implicitly by any constitutional provision. In order to be protected by the Due Process Clause, a right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” According to the majority, there is no liberty interest because the law didn’t protect the right to abortion in the 19th century.
John Roberts did not vote against the overturn, which is to his credit. Roe Casey, writing that the majority’s “dramatic and consequential ruling is unnecessary to decide the case before us.” Mindful of the threat this “serious jolt to the legal system” will pose to the legitimacy of the Roberts Court, the chief justice sought to split the baby, so to speak. He rejected the viability test, and he upheld the Mississippi law. The constitutionality of abortion will be left to another case. Roberts claimed to be a supporter for abortion rights. He said Mississippi women could choose to have an abortion before 15 weeks.
To justify their rejection stare decisis (respect for the court’s precedent) to which the members in the majority had pledged fealty during their confirmation hearings, Alito wrote that Roe was “egregiously wrong.” He and the others in the majority had the nerve to compare abortion to racial segregation, drawing an analogy between the court’s overruling of Roeand its rejection Plessy v. Ferguson In Brown v. Board of Education.
Nearly half the states– laws that severely restrict or ban abortion. Almost one in five pregnanciesAbortion is the most commonly performed medical procedure today. Twenty-five percent (25%) of American women will have a termination of pregnancy within their lifetime. This is the future RoeIt has been retracted and it is now estimated that 36 million women and others who can become pregnantThe fundamental right to choose whether to end a pregnancy will be denied.
The dissenters observed that under laws in some states (like Mississippi) that don’t offer exceptions for victims of rape or incest, “a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life.”
Alito wrote, “The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
The dissenters weren’t convinced. “No one should be confident that this majority is done with its work,” their dissent warned. Dissenters pointed out that the right to choose was enshrined. Roe is “part of the same constitutional fabric” as the rights to contraception and same-sex marriage and intimacy. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
Thomas didn’t pull any punches in his concurrence. He said that the court “should reconsider” other precedents based on substantive due process, including Griswold v. Connecticut (The right to contraception). Lawrence v. Texas (the right to sexual conduct in the same-sex) Obergefell v. Hodges (The right to same-sex marriage).
In Alito’s draft opinionThe following was published: PoliticoHe wrote in May that the rights were protected by Lawrence Obergefell are not “deeply rooted in history.” But the final majority opinion didn’t go that far. Kavanaugh would not sign onto it. He wrote in his concurrence, “Overruling Roe does not mean the overruling of [Griswold, Obergefell, Loving v. Virginia (right to interracial marriage)], and does not threaten or cast doubt on those precedents.”
The dissenters frame it Dobbs v. Jackson Women’s Health Organization ruling as a gross attack on the right to self-determination: “The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven — all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.”
It is this right to self-determination that the five ultraconservative members on the court have taken away from half the Americans.