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    Ending Roe v. Wade? What’s Really Going On With Abortion

    June 16, 2022
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    Decoding Dobbs v. Jackson, Roe v. Wade, and the Supreme Court

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    On May 2nd, Politico leaked a bombshell: a draft majority opinion by Justice Samuel Alito in the case of Dobbs v. Jackson. This looks to be the Supreme Court’s decision to overturn Roe v. Wade (1973), the court ruling which essentially legalized abortion nationally.  

    Politico framed it this way:

    This is not entirely true, and we don’t fault them for going for the most attention grabbing headline. But the details of this case and of the Supreme Court have shown that the media has essentially no idea how the Court works. Nor do they have any clue what’s really going on in the original case, the subsequent cases, or the result of the Dobbs decision. 

    Take this quote from the Washington Examiner, for example:

    First off, the whole point of Roe was that the Constitution says nothing specifically about abortion! There are no abortion rights ‘enshrined’ in it, nor are they prohibited. The decision was an interpretation of the things that the Constitution does specify (due process) or have been established based in other  cases before the Court (right to privacy), as they apply to abortions. Secondly, that decision placed the matter into common law- only an amendment to the Constitution would enshrine it there.  

    Assume for a second that this draft is close to what the final decision looks like - and we will assume so, given the majority for the opinion, the oral arguments, and the extensive nature of the draft. This will leave only three concrete legal outcomes:

    1. Roe and Casey are now overturned, and void as law.
    2. The State of Mississippi’s abortion law remains on the books with no modifications.
    3. All future abortion matters are returned to the states to decide. Voters can vote what they want via the ballot box, and legislatures can craft laws based on popular opinion. This will in practice lead to 15 or 20 states banning abortion tout de suite. But the other roughly thirty states could in theory keep the status quo or even liberalize access to abortion. 

    As of this writing in mid-June, the final decision had not yet been announced. Thus all of our comments will be based upon the draft opinion circulated by Politico. We imagine that the final decision will look similar to the draft one, but we acknowledge that there could be substantial revisions. We imagine that the part about judging future abortion laws coming from the states is the part that will have the most changes. 

    It’s for time Decoding Politics to fully decode Roe v. Wade,  Dobbs v. Jackson, and the workings of the Supreme Court. We are not in the legal field and realize that there will be nits to pick, but we want to inform politically savvy readers how the Court works and how it has an impact on the political process.

    The US Court System and the Supreme Court’s Role

    The USA really has 51 court systems- one per state, and the federal court system. Each state has different set of courts that oversee each county or city (and sometimes multiple courts for large counties and cities). A case can typically be appealed, that is, heard all over again, and the case move to a state appeals court (also called an appellate court). The highest level of appeals court is typically the State Supreme Court, which makes the final decisions in matters of state law. 

    Many things are governed under state law and not federal law- typically corporate and property matters stay in state court. Most cases involving felonies like assault and murder stay there too. Only major matters involving crimes that go across state lines (interstate drug trafficking, say) or ones that violate federal laws (securities fraud) go to federal court.  

    The federal court system spreads across the country- there are 94 districts. Probably the two most famous are the Southern District of New York, which tries many high profile corporate and corruption cases (like Jeffrey Epstein) and Washington, DC. Above them are 13 different appeals courts, called circuit courts. They manage 12 different geographical regions, with  a separate Federal Circuit for certain government matters. Regulating the appeals courts at the top is the Supreme Court itself, usually called just “The Court”.

    The Court has nine justices, appointed for life by a President, and confirmed by the Senate. There are eight normal judges, known as Associate Justices, and one Chief Justice, John Roberts, who is the final arbiter on many internal matters. The Court now has three justices appointed by President Trump (Gorsuch, Barrett, and Kavanaugh) two from President Obama (Kagan, Sotomayor), two by George W. Bush (Alito, Roberts) and one by George H. W. Bush (Clarence Thomas). Justice Stephen Breyer, who is retiring this summer, was appointed by President Clinton. His replacement, Kentaji Jackson, is Biden’s only Court appointee thus far, and will take over when the Court is back in session in the fall. 

    When the Court decides on a case, at least one Justice is assigned to write the majority opinion. Sometimes the majority author is disclosed, sometimes it is not revealed. Sometimes justices can write a concurring opinion, which means essentially “I support the ruling, but for different reasons”. The dissenters can either join in one opinion or write individual dissents as they see fit. 

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    How The Court Decides to Hear Cases

    The Court’s job is to be the final decision maker on legal matters in the country. It’s the last appeals court.  It doesn’t actually create new rules, nor does it have any enforcement mechanism. Its job is to look at the Constitution first and its enumerated rights and procedures. Secondly, it looks at the legal precedents and the body of decisions that are relevant to determine the principles involved. If the law relevant to the dispute is deemed to be valid by the Court, then they issue a decision in line with it. If they deem that the law as written oversteps Constitutional boundaries or individual rights, then the Court issues guidance as to what is acceptable and which sections can apply. It decides the individual case at hand, but also sets the precedent for future similar cases nationwide. 

    The US legal system places an enormous weight on precedent, and it is very difficult to change precedent without a strong reason to do so. The legal system, as it based in a common law and a body of court decisions, believes that precedent equals repeatability equals predictability, which benefits everyone in the legal profession and outside of it. 

    More specifically, the Court typically looks at cases where the previous appeal is inadequate relative to the law or the Constitutions. The cases they decide to hear typically revolve around one of three issues that the Court considers its jurisdiction and duty to resolve:

    1. A decision where one US appeals court is in conflict with another. For example, an Appeals Court in New York could rule in favor of a defendant in a case where a new law is being applied, but one in Chicago rules against a defendant in an identical case. That would mean that the Court would have to decide which of the two decisions is the correct one. 
    2. A State Supreme Court has ruled in a matter that contradicts a Court of Appeals decision, or, The Court’s past decisions.
    3. An Appeals Court has ruled on a matter that is at heart a Constitutional issue or in a way the contradicts the Supreme Court’s past decisions. 

    The Court receives over 10,000 appeals per year. Of those, perhaps 300 are granted a petition of certiaori, meaning that the Court elects to hear and make a decision in the case. All cases that are rejected, effectively see the existing decision upheld and thus to be enforced. Decoding hopes that we can use this framework to analyze future Court cases. 

    The Background of Roe v. Wade

    The case everyone talks about, was originally brought to the Court in 1970, and decided in 1973. It all derived from an incident in Texas: “Jane Roe” was a pseudonym for Norma McCorvey, a young woman who had an unplanned pregnancy. She wanted to end the pregnancy, but at the time, that was illegal under Texas law. 

    Abortion had been a very fraught issue for some time, with feminists arguing that the prohibitions against abortion nationally were harming women. The 1960’s sexual revolution had changed the discussion in the national lens. McCorvey and her attorneys sued Dallas County, represented by district attorney Henry Wade. They sought to overturn the law and allow her to have an abortion. 

    The case began in 1969 in Texas courts. It reached The Supreme Court in 1970. She eventually had the baby but gave it up for adoption. In 1973, the Court ruled 7-2 in her favor that state abortion laws were invalid, given the mother’s right to privacy, and that anything restricting abortion in the first trimester should be struck down. This landmark decision effectively legalized abortion for the first time in American history. 

    Dissenting arguments stated that there was no guarantee under right to privacy here, and that furthermore, this was a decision for state legislatures, not federal courts. Justice White’s dissent was harsh: “In my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court”

    The decision led to a host of changes where states stopped prohibiting abortion. At the same time, in recent years, many states have tried to place strict controls on access to abortion or to limit its occurrence, while staying within the limits of the decision.

    Interestingly enough, McCorvey later renounced her support for abortion rights and in 1995 started a non-profit to fight against abortion.  

    What Roe Actually Decided

    Going into the details of the Roe case, we find that the decision has three changes from the federal level that overruled existing state laws on abortion.  Justice Blackmun’s decision has been cited innumerable times since its first release. 

    1. Protected under two provisions in the Constitution: Roe said that abortion, within limits, was guaranteed under the Constitutional right to privacy. More specifically: “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.”
    1. Trimester test. The decision declared that the woman’s right to privacy was the principal right here, but acknowledged that as the pregnancy develops, there are competing interests from the fetus. In the first trimester, states could oppose essentially no restrictions to access. In the second trimester, abortion access could be curtailed for issues of the mother’s health. In the last trimester, states had more ability to limit access for a wide variety of reasons. 
    1. State laws banning abortions in all cases were not legally valid. Because they violated the right to privacy, state laws with a blanket ban on abortion were not valid. The states would either have to pass new laws that reflect the trimester tests, or would have to keep existing laws on the books but acknowledge the end of restrictions for first and typically second trimester abortions. 

    What Casey Decided

    Roughly twenty years later, a subsequent case reached the Court, Casey v. Planned Parenthood. Pennsylvania in 1982 had passed a law with several restrictions on access to abortion. As the leading provider of abortions in the state, Planned Parenthood wanted to have it struck down as being incompatible with Roe. Robert Casey, the Attorney General of Pennsylvania, argued the law on behalf of the state. 

    The decision was reached by a majority of 5-4, with a couple of technical dissents, to uphold Roe and to remove one of the five restrictions placed on abortion because of the 1982 law. The case also introduced a new framework for looking at abortion laws.

    First of all, it guaranteed the abortion access under the right to privacy framework of Roe. Secondly, it introduced a framework of ‘undue burden’ for restrictions to abortion. If the state law placed a burden that fundamentally clashed with a woman’s right to choose, that would be an undue burden that had to be overturned. 

    Thirdly, the test of the competing interests of the unborn baby would no longer be the trimester framework of Roe- that was scrapped. In its place, it proposed a test of ‘viability’ of the fetus outside the mother. Laws restricting abortion prior to viability have a much different standard than post-viability, because the competing interest of the unborn life cannot be fully considered. 

    A later case summed it up well: "Under Casey, abortion regulations are valid so long as they do not pose a substantial obstacle and meet the threshold requirement of being "reasonably related" to a "legitimate purpose." [June Medical Services v. Russo]. 

    What Dobbs v. Jackson appears to say

    As the final opinion is not yet out, we only have the draft opinion by Justice Alito. They are adamant that this is a legal matter for states, similar to the pre-Roe era, and that there is no cover in the Constitution for deciding either way:

    “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and 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 Clauseofthe Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” [p.5 of draft]

    Later, they list the many reasons they consider the decision to have been wrong on day one, not just misguided or proven over time to have been an error:

    Roe found that the Constitution implicitly conferred a  right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the ‘meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and  the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any party and has never been plausibly explained. Roe’s reasoning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion.” [ p. 41]

    With this conclusion presented, they go into supporting arguments. We will skip the legalese and blow by blow of the individual cases, which occupies a substantial portion of the document. The main point they bring up is that, in contrast to other cases involving individual rights like right to marry person of a different race (Loving v. Virginia) or right to contraception/privacy (Griswold v. Connecticut), abortion cases involve balancing two competing interests:

    “What sharply distinguishes the abortion right from the  rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an
    “unborn human being.” [p.32] 

    For critics saying that the end of Roe will end the guarantees built up over the past 50 years to contraception, interracial marriage, gay marriage etc, this specific passage shows that they have no desire to challenge them at all. They explicitly draw a distinction showing the categorical difference of ‘abortion rights’ to these other rights.

    They close the document with a standard for reviewing future abortion laws adopted by states, what they call a rational basis review, which weighs several factors. 

    The Political Implications of Dobbs

    This decision is going to radically alter the landscape of abortion access across the country. Roughly 20 states will almost immediately end access to abortion or greatly restrict it. Several, if not more than a dozen, states will declare themselves sanctuary and open up access to abortion. There will be major state by state battles on access to abortion, timelines, funding, and penalties. Once this rash of new state laws is enacted, expect another wave of challenges in the courts to define the boundaries.  The anti-abortion team will likely win the first few battles, but it is very much up in the air if they can win the war across the majority of states.  

    At a different level, the major issue on both sides of the abortion debate is that they are stuck in trench warfare in terms of language. The issue of ending a pregnancy early is called ‘abortion’ – a very boring  and technical term that does not evoke emotions. One side is ‘pro-choice’, one is ‘pro-life’. Both terms, taken at face value, are hard to argue against – do you know anyone is anti-life or anti-choice? Until one side has language that is powerful on their side, and tars the other side with negative language, the issue will go nowhere. 

    Pro-choice advocates need to play up their defense of women’s health, of supporting safe pregnancies, of guaranteeing women’s autonomy, etc. They need to make the other side look restrictive and evil, which is why using the “Handmaid’s Tale” imagery I think works well. In the 1990’s, the left said abortion should be ‘safe, legal, and rare’ which sounds prudent and certainly helped their side for two decades. 

    Pro-lifers need to paint the other side as evil and harming the helpless. They need to show how something which sounds clinical is actually horrid. They should be the defenders of those with no voice- this column wonders if they call themselves advocates “For the one million” [babies aborted each year in the US], would that turn the tide in their favor. That would make their opponents look like they support something which is industrial in scale instead of ‘safe, legal, and rare’.   

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    Decoding Politics

    Decoding Politics is an expert with 25 years experience explaining politics around the world.
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