The Supreme Court of the United States has overturned two landmark cases on abortion.
In light of the overturning of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, Crossway books has offered to give away the ebook of The Case for Life by Scott Klusendorf. This is one of the best primers on the pro-life position so I would encourage you to take advantage of this offer if you have not read it or do not own it. The link for it is here.
On June 24, 2022, the Supreme Court of the United States, in Dobbs, State Health Officer of the Mississippi Department of Health, et al, v. Jackson Women’s Health Organization, et al, found the Constitution does not confer a right to abortion, overruling two previous landmark cases: 1) Roe v. Wade, which established no state could restrict abortion prior to viability, and states could only restrict abortion after viability unless it was necessary for a woman’s health (though with its sister case, Doe v. Bolton, the Supreme Court ruled “health” could be defined so broadly that there were effectively no bars to having an abortion at any point during pregnancy, save being able to find an abortion provider willing to administer it); and 2) Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the Roe decision on the grounds of stare decisis, the legal philosophy which requires the court to adhere to precedent in making their decisions. Overturning these two decisions did not outlaw abortion in the United States. It just returned the question of abortion to the people and their representatives, as per the 10th Amendment. This means, as when slavery was permitted in the U.S. and there were free states and slave states, there will be proverbial free and slave states here in the U.S., where some states will outlaw abortion completely, some states will allow it through all nine months for any reason, and some states will still permit it but with far more restrictions than the Supreme Court previously allowed. Obviously this is a great win for the pro-life movement but it is not the endgame. The pro-life movement will continue to fight until abortion is completely outlawed in the U.S.
If you’ve been following the debate since the decision was first leaked roughly two months ago and even following the actual overturning of the court case, you’ll realize pro-abortion advocates have no real argument for their case, instead preferring to resort to extremist rhetoric and assuming pro-life people are all evil and don’t really case about the lives of unborn children. Of course, pro-choice academics do have sophisticated arguments for why abortion should be legal, but pro-abortion advocates at the street level are largely not aware of these arguments. There has been no actual engagement with the arguments presented in the Dobbs decision by the Supreme Court justices who overruled these court cases. This proves that while everyone on social media has given their opinion on it, almost no one has actually read the decision. So for the purpose of this article, I am going to be briefly summarize the arguments made in the Dobbs case. The decision is quite lengthy and not everyone will have the time to be able to read the decision in its entirety. But if you read this article, you will be better informed on the case than most people arguing on Facebook and Twitter.
Justice Samuel Alito wrote the majority opinion, in which Thomas, Gorsuch, Kavanaugh, and Barrett joined. Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgement. And as you might expect, Justices Breyer, Sotomayor, and Kagan wrote the dissenting opinion. You can read the opinion in full here, but I’m going to note the primary arguments summarized in the syllabus, itself.
Alito states Casey ignored the primary question of whether or not the Constitution establishes a right to abortion and instead reaffirmed Roe entirely on the basis of stare decisis. Proper application of stare decisis requires that the strengths of Roe be considered. As those strengths were not reassessed, Casey was overturned.
As for Roe, while the Constitution does not explicitly grant a right to abortion, the Supreme Court in Roe argued that a right to abortion was grounded in a right to privacy that springs from the 1st, 4th, 5th, 9th, and 14th Amendments. The Casey Court determined abortion was protected by the “liberty” mentioned in the 14th Amendment’s Due Process Clause, while others assert it is protected in that amendment’s Equal Protection Clause. But neither of these arguments work because according to precedent, a State’s regulation of abortion is not a sex-based classification and so is not subject to the heightened scrutiny that applies to those classifications.
Some have argued support for abortion is grounded in our Nation’s history and tradition. But contrary to this, the 14th Amendment does not protect a right to abortion. There was no support in any state or federal constitutional law for the right to an abortion until the latter half of the 20th century, nor had any scholarly treatise argued for such a constitutional right. Abortion had, conversely, long been a crime in every state. And at common law, abortion had always been unlawful through some stages. As Roe either misstated or ignored the actual history of abortion law in this country, and Casey failed to engage with Roe’s faulty historical analysis, it is right to overturn both court decisions.
Respondents did argue that the actual history of abortion doesn’t matter when determining whether or not abortion is actually protected by the 14th Amendment, but Alito retorts that it does, indeed, matter because of the very standard the Court uses when determining whether a right is, in fact, protected. You can’t argue stare decisis when it suits you (e.g. Planned Parenthood v. Casey) then ignore it when it doesn’t (determining the actual precedent set and followed by the courts prior to that decision).
Alito goes on to mention that rather than press the history argument, proponents of abortion rights argued the right to abortion is an integral part of a larger, entrenched right. Roe called it a right to privacy and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy”. However, Alito notes that while these two decisions struck a particular balance between the interests of a woman who wants an abortion and the interests of what the Court deemed “potential life”, the people of each various State may interpret these competing interests differently.
The final consideration by the Court was regarding whether or not a right to abortion is entrenched in other rights that are supported by other precedents. The Court rejected this approach because attempting to justify abortion through appeals to bodily autonomy and the right to define one’s “concept of existence” prove too much. It could be used to justify illicit drug use, prostitution, and other like things. Abortion is sharply distinguished from the other rights outlined in Roe and Casey in that abortion destroys what Roe termed “potential life” and what the law challenged here calls an “unborn human being”.
The Court gives five criteria it used in deciding when a precedent should be overruled. These five factors weigh strongly in favor of overruling Roe and Casey:
The nature of the court’s error. Essentially, the reasoning and faulty history of Roe and Casey were so egregiously wrong that these cases should be overturned.
The quality of the reasoning. This is actually an argument I and other pro-life advocates have argued for some time, and it’s nice to see the Court affirming it. Essentially, the decision in Roe reads like legislation and it is not the Court’s place to make laws. The Supreme Court justices are not legislators. Even more glaring than this, however, is Roe’s failure to justify the crucial distinction it drew between pre- and post-viability fetuses. And when Casey reassessed it 20 years later, it upheld Roe’s central holding but refused to endorse most of its reasoning.
Workability. The “undue burden” test established in Casey cannot be applied in a consistent and predictable manner.
Effect on other areas of law. As Alito explains, “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.”
Reliance interests. Overruling these two court cases will not upend any concrete reliance interests like those arising from “cases involving property or contract rights.” Arguments for abortion rely on much more abstract views of reliance, such as the nature of their intimate relationships and women making choices that define themselves and their place in society.
There you have it. These are the basic reasons the Court ruled to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. I had originally intended to read through the entire decision and then summarize the arguments made. While I still intend to read through the decisions (including concurring and dissenting opinions) in full, I decided against summarizing everything. Not only would that be a monumental task on my part when I do have to focus on other areas in which I make money to live on, it would also make these articles quite lengthy. So at that point, if you’re really that interested, you might as well just read the whole thing yourself (or if you know me or have access to me on social media, you can always ask for my thoughts after I read it all). But just knowing the reasons the Court decided to overturn these previous two cases will put you miles ahead of the discussion occurring on social media. If nothing else, I hope people take from this Substack I’ve started the ability to elevate discussions on abortion instead of just relying on emotional appeals and assuming the worst of your discussion partners.