The final decision is out in Dobbs v. Jackson. It’s a doorstop of a document, numbering over 200 pages. The court voted 6-3 that the key prior abortion cases, Roe v. Wade and Casey v. Planned Parenthood, are to be overruled. The State of Mississippi’s law limiting abortion to pregnancies prior to 15 weeks stands. And future abortion laws have to be decided by the States, with no mandates from the Court.
The decision is roughly in line with the leaked draft opinion. The other pages of this decision consist of the three concurring opinions, and the dissent. This ruling has three concrete outcomes, as we had mentioned before:
As the decision itself says: “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
This new framework will eventually see a host of these new state abortion laws entering State Supreme Courts and the US Supreme Court to iron out and to clarify. But they will take two to four years to work through the system.
Looking at the Opinions in Dobbs v. Jackson
In our overview of the Court, we noted that the majority decides the judgement (the legal outcome) and writes an opinion justifying its reasoning. Justices can also add concurring opinions- legal documents that agree with the main opinion and then give additional viewpoints or thoughts. Or they can be like Justice Robert’s opinion here, where they agree with the judgement, but then justify that with a different rationale or propose a different framework for future decisions. Every decision that is not unanimous also has one or multiple dissents- where Justices who disagree say why they disagree with the majority.
Let’s go through the high points of the majority opinion, look at the nuances in the concurring opinions, and see where the dissent focused.
The Majority Opinion
The majority opinion, written by Justice Alito, was roughly in line with the draft opinion that was released in terms of reasoning, albeit far more detailed. Our previous piece on this went into great detail on the Roe and Casey cases, and the specific points of those which the Dobbs decision would remove. We encourage you to read through that article rather than repeating its contents. Including appendices, the final Dobbs decision runs well over one hundred pages of dense legalese and extensive footnotes. We will not even quote it here, and instead summarize the main points.
Roe was declared to have been made under a number of poor assumptions, and have proven to be inadequate for regulating future abortion laws. Therefore, they have to be thrown out immediately, despite the Court’s typical preference for honoring precedent. With the Court having no requirements of guaranteed abortion rights, or prohibitions on abortion rights / access, the States are now able to decide the prevailing abortion laws in their territories. Roe and especially Casey totally failed to settle the issue nationally, and instead have only increased the rancor with time.
The Constitutional basis for Roe appeared to have been the ‘due process’ clause of the Fourteenth Amendment. Because of the competing interests of the unborn child, and a lack of historical evidence for it, the Court has declared this an improper use. But they were clear that overturning this rule would not endanger other cases which are built around the 14th Amendment: Griswold, Lawrence, and Obgerfell.
The decision spends a large amount of time addressing the dissent and the concurring opinions’ various points. We will address those in their respective sections.
This decision has three concurring decisions- one by Justice Thomas, who agreed but wants to go further in the future. Justice Kavanaugh agreed and presented a very neutral, level-headed explanation, that is different in tone from the dense majority opinion. And Chief Justice Roberts gave an opinion that is nuanced, agreeing with the judgment but proposing a different standard to judge future abortion laws. The majority acknowledged this possibility and offered a blistering criticism of it in its opinion.
Justice Thomas Attacks from the Right
Thomas went further even than the majority in upholding the state of Mississippi’s law. He summarized his view of the matter extremely bluntly in his opinion: “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”
In another section, he agreed with the majority opinion, and that the Constitution does not guarantee a right to abortion under ‘substantive due process’. Furthermore, many of the cases that rely on this as a backing also do not qualify in his mind. He notes that the majority opinion sees the precedents, involving contraception, homosexual marriage, etc, as different from abortion cases because abortion involves both the rights of the pregnant woman and the unborn child. But in a disagreement with the majority, he thinks that all of those other cases should be revisited:
“The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” [Griswold deals with contraception for married couples, Lawrence with homosexual relations, Obergefell with gay marriage]
The majority does not at this point agree with him, which is why he had to write a concurring opinion. Time will tell if the Court, as liberals fear, swings to Thomas’s interpretation of this clause and its outcome, or it stops at abortion.
Justice Kavanaugh’s Level-Headed Opinion
Perhaps the clearest and most quotable of the opinions comes from Justice Kavanaugh. It’s the most level-headed in terms of analysis, and the least legalistic in language. He has lots of very quotable parts about the impartiality of the decision with respect to abortion itself. The Constitution is neutral on abortion, therefore the Court should be too, and the States can decide the rest. He explains very succinctly that abortion is a moral issue, but not one that Constitution says anything about:
“The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition, as the Court today thoroughly explains. On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice.”
He is also adamant to point out that in no way has abortion has been declared illegal in any way- merely that the states are required to do nothing by the Constitution, and the matter now returns to states and their legislatures.
“To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process”… (597 U. S. ____ (2022) 7 KAVANAUGH, J., concurring)
“Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States” (597 U. S. ____ (2022) 7 KAVANAUGH, J., concurring)
The second part of his opinion deals with the issue of following precedent, stare decisis in legalese. The main question is, if the inclination of the Court is to always follow precedent, and there are two pro-abortion choice precedents in Roe and Casey, how does the Court justify its decision to junk precedent of the past fifty years? He acknowledges the difficulty of the decision:
“When precisely should the Court overrule an erroneous constitutional precedent? The history of stare decisis: this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests. “ (597 U. S. ____ (2022) 7 KAVANAUGH, J., concurring)
He then attacks Roe’s decision-making:
“But as the Court today explains, Roe has caused significant negative jurisprudential and real world consequences. By taking sides on a difficult and contentious issue on which the Constitution is neutral, Roe overreached and exceeded this Court’s constitutional authority; gravely distorted the Nation’s understanding of this Court’s proper constitutional role; and caused significant harm to what Roe itself recognized as the State’s “important and legitimate interest” in protecting fetal life.” (597 U. S. ____ (2022) 7 KAVANAUGH, J., concurring)
He acknowledges that the issue is more complicated because of the Casey decision that followed. Overturning both requires a substantial burden, and he asserts that that case’s failure to settle the issue shows its failure. It tried to set a standard and anticipate the legislation that would follow, but instead merely fanned the flames of division:
“In short, Casey’s stare decisis analysis rested in part on a predictive judgment about the future development of state laws and of the people’s views on the abortion issue. But that predictive judgment has not borne out. As the Court today explains, the experience over the last 30 years conflicts with Casey’s predictive judgment and therefore undermines Casey’s precedential force.” (597 U. S. ____ (2022) 7 KAVANAUGH, J., concurring)
For those who are wondering exactly what is going on this decision and the reasoning behind it, I think reading Justice Kavanaugh’s twelve pages is the best option.
Roberts Walks the Middle Ground
The oral arguments and several articles had suggested that Roberts was seeking a middle path. He was looking to perhaps uphold Mississippi’s law, but not necessarily throw out Roe and Casey. The state of Mississippi in the oral arguments essentially made this impossible, arguing for Roe to either be fully overturned or not.
Yet Roberts tried to get the Court to move to his position and failed, so he had to issue an odd concurring opinion. He agrees with the judgement, keeping Mississippi’s law in place, but suggested that future decisions should be decided based on a new standard of roughly 12 weeks as the dividing line:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability” (597 U. S. ____ (2022) ROBERTS, C. J., concurring in judgment4)
He would keep Roe and Casey, but with only that one change:
“The viability line is a separate rule fleshing out the metes and bounds of Roe’s core holding. Applying principles of stare decisis, I would excise that additional rule—and only that —from our jurisprudence.” (597 U. S. ____ (2022) ROBERTS, C. J., concurring in judgment4)
The bigger question, which we have dealt with earlier, is following precedent, and Roberts thinks that overturning rather than modifying Roe is far more than necessary. He would have preferred that small modification and believed it sufficient in this case:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
The majority took note of Robert’s point in its opinion, and offered a blistering rebuttal. First it points out that this is a test which is difficult to quantify or test in any way. Secondly, it substitutes one rule for another, which violates precedent without resort to anything Constitutional. Its test was not suggested by any party or brief in the hearings. Adopting this would just move the goalposts again and postpone the day that a new framework would need to be established:
“In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay”
The Dissent: Breyer, Sotomayor, and Kagan
The dissent includes the ‘three liberals’ of the Court, Breyer, Sotomayor and Kagan. Their opinion runs along expected lines, namely citing the need to uphold precedent, and the potential abridgement of women’s rights. The dissent is a strong one though, running over a host of issues both practical and legal.
Their first major point they highlight is that under this framework, when returned to States, women could potentially have no rights in the decision to terminate a pregnancy. There is the possibility that any abortion is outlawed under any circumstance. This move by the Court would take away any guarantees of equality that women would have:
“The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some
sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s)” (597 U. S. ____ (2022) 13 BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting)
After criticizing them that overturning these precedents would unbalance the rights of women versus the unborn child, it goes further into the fact that it is virtually impossible to remove only ‘women’s right to choose’ from the bundle of rights that have been recognized from the 14th Amendment. Doing so endangers all of the others. The Jenga tower analogy is very persuasive.
“It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.) Today’s decision, the majority first says, “does not undermine” the decisions cited by Roe and Casey—the ones involving “marriage, procreation, contraception, [and] family relationships”—“in any way.” Ante, at 32; Casey, 505 U. S., at 851. Note that this first assurance does not extend to rights recognized after Roe and Casey, and partly based on them—in particular, rights to same-sex intimacy and marriage. See supra, at 23.6 On its later tries, though, the majority includes those too: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” (597 U. S. ____ (2022) 13 BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting)
Their dissent also goes through a number of practical considerations about access, viability etc. All of these they argue support that the current framework is far from perfect, but legally viable. Furthermore, by throwing out the existing framework for a new one, the Court will be abandoning a messy established precedent for a whole new system which will be totally unpredictable. Interestingly enough, if they had tried harder, they have been able to achieve a common ground with Justice Roberts on maintaining but slightly modifying the current decision making framework:
“In short, the majority does not save judges from unwieldy tests or extricate them from the sphere of controversy. To the contrary, it discards a known, workable, and predictable standard in favor of something novel and probably far more complicated. It forces the Court to wade further into
hotly contested issues, including moral and philosophical ones, that the majority criticizes Roe and Casey for addressing.” (597 U. S. ____ (2022) 13 BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting)
The Final Analysis
The final decision on abortion is out, and it’s a major one. Roe is overturned, and the Court gives no guidance or mandates on abortion to the individual States. They can make their own abortion laws, as free or restrictive as their voters would like. The concurring opinions expose the potential future drift from this case of other issues- towards a more limited reading of what liberties are guaranteed, and towards more decisions reserved for the States. The dissent is a well-argued one, and may have been able to find a common ground with Justice Roberts with a nuanced negotiation.
Decoding is not in the legal field, and so cannot assess whether this was the ‘correct’ decision or not - the subtleties of jurisprudence escape us. However, we can analyze this through a political lens. It has put major wind in the sails of conservatives, states rights activists, and red state legislatures to move ahead and restrict abortion. It will probably promote a more militant left determined to combat it. Political divisions along party lines will likely deepen. Given the 6-3 majority on the Court and the relative youth of those Justices, it is very unlikely this will be challenged in the coming two decades. Barring a huge reversal in national politics, this new framework on abortion and other ‘individual liberty’ cases looks to be here to say.
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