The Supreme Court completed its term and its ending was one that will be studied for generations. It was ripe with Constitutionalist decisions and correcting the activist errors of prior cases that were decided by the Court decades ago. In this piece, we will provide a brief overview of Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey.
We have written in depth about Roe v. Wade and Planned Parenthood v. Casey in prior articles. By means of a brief recap, in Roe, the Supreme Court ruled that there was a right to abortion under the Constitution and heavily relied upon the 14th Amendment Due Process Clause. Abortion does not appear in the Constitution, yet the Supreme Court read it in as a “right”. It considered a trimester framework to assess at which point in the pregnancy the state would have an interest in regulating this manufactured Constitutional right to abortion. As a result of this decision, the diverse state laws addressing the legalization of abortion were invalidated. Prior to this decision, the concept of legalization was addressed in state legislatures for over 100 years, not considered under U.S Constitutional law. Planned Parenthood v. Casey reaffirmed the right to abortion under the Constitution, but replaced the trimester framework with a vague “undue burden standard” to adjudicate when a state law was placing an undue burden on a woman seeking an abortion. Since Roe, abortion has been a highly controversial issue nationwide.
The impact of the Dobbs decision now brings an authentic spirit of democratic debate before the American populace in returning the issue of legalization of abortion back to the state legislatures. The issues in Dobbs were whether a Mississippi law that had banned abortion after 15 weeks was Constitutional and also whether the Supreme Court would overturn Roe and Casey. In the majority opinion written by Justice Samuel Alito, the Court decided to overturn Roe and Casey and stated that abortion was not Constitutionally protected and used several traditionalist examples of the history of state law regarding the issue to emphasize the importance of state interests to resolve this profound moral question. It returned the issue of abortion back to the states and was highly critical of the reasoning in Roe that applied the 14th Amendment Due Process Clause to invent a Constitutional right to abortion.
In response to Dobbs, states have taken different paths with regards to the issue with some banning abortion and others maintaining it. Debate will now be confined to state legislatures and democracy, no longer reliant on the Supreme Court to stretch its role and assume legislative capacities to quash the appropriate democratic framework of the debate.
The dissent attempted to present Justice Alito’s reasoning as faulty and used the Loving v. Virginia (striking down laws banning interracial marriages) decision. The dissent stated that Loving relied on the 14th Amendment and that the enactors of that amendment would not have foreseen that it would have given blacks and whites the right to marry. The dissent’s arguments, however, are misplaced as the 14th Amendment was enacted with the racial backdrop of a nation emerging from the Civil War. It can be argued that Loving was a natural descendant of the philosophy behind the 14th Amendment whereas abortion was not. Abortion was not at issue upon enactment of the 14th Amendment, thus relying on this to support legalizing abortion as a matter of Constitutional law does not have a strong traditionalist foundation. There is also been no viable attempt to amend the Constitution to recognize abortion as a formal matter of Constitutional law.
The Supreme Court erred by taking Roe and bringing this case to the forefront of the nation’s views on the Supreme Court. From consistent public opinion headlines to dominating Supreme Court judicial confirmation hearings, this issue has created nothing more than an unnecessary distraction that detracts from the role of the Supreme Court.
Federalist 78 helps inform us as to how the framers viewed the role of judges as the Constitution was being enacted. It stated as follows with regards to the judiciary:
“It may truly be said to have neither FORCE nor WILL, but merely judgment;”
For decades, the nation has not favorably responded to the Supreme Court’s misplaced “force and will” that created a divisive discourse on abortion that in turn harmed the institution of the Supreme Court. Now that the previous errors have been corrected, the nation must begin its healing process and recognize state democratic interests on profound moral issues.
Unfortunately, in response to the decision, the media has sensationalized the issue and is supported by influential figures in the nation during its quest. The common theme has been a misguided promulgation that this decision is an attack on women’s rights and a call for Supreme Court institutional reform to expand the Supreme Court. Some have argued for Congressional action to circumvent the decision and others have called for abortion to be done on federal lands. All of this in response to a victory for democracy and restoration of judicial boundaries on this issue is deeply troubling.
Furthermore, judges in the majority have been threatened at their homes and where they are dining by an unruly mob of individuals violating federal law in attempting to intimidate judges. The blatant disrespect and ignorance for the rule of law constitutes nothing more than the erosion of the societal framework of our nation. The moment is here for a greater calling to education including on fundamentals such as the separation of powers of government in Constitutional law and how freedom of speech does not equivocate to “freedom to harass”. Churches and pro-life centers that have sought to help women in need have also been attacked and graffitied. Much of this unrest can begin to recede if facts and reason triumph over emotional directives. Perhaps a push for transparency as to those entities that benefit the most from the wide-spread availability of abortion services such as corporations and those with political careers that have developed close bonds with various lobbyists throughout the years in DC. A public awareness campaign on some of these issues may bring a better balance to the discourse and ultimately bring about a more informed populace that will be equipped with the facts they need for reasoned and informed debate on the issue.
As a nation, we should be grateful for the courage the Supreme Court showed in Dobbs and the willingness to place its Constitutionally assigned judgment duty rather than legislative action at the forefront of its role as rightly intended by our framers.