In Dobbs v Jackson Women’s Health Organization, the Supreme Court decided on overruling the Court’s previous cases Casey and Roe. In Roe and Casey it was ruled that a women’s right to abortion is a constitutional right falling under the “liberty” named in the 14th amendment. The petitioners, Mississippi, are asking the Court to overrule Casey and Roe or at least discard the viability line. The respondents, Jackson Women’s Health Organization, firstly argued that the case should be dismissed due to the lack of constitutional foundation. Secondly, the respondents argued that Roe and Casey should not be overruled. The respondents’ argumentation was built mainly on points regarding the fundamental and constitutional right for abortion, arguments on behalf of the viability line and arguments about fundamental need for abortions as well as facts and arguments about women’s health. The case was not dismissed and therefore the respondents’ other main arguments are discussed in this blogtext.
The respondents argued that it is of no meaning that the specific words “abortion” or “pregnancy” do not appear in the text of the Constitution. It was argued that the actual question of the case is whether the general principles grounded in the Constitution apply to the specific case of abortion, and according to the respondents they do. The respondents argued that in Casey the Court explained that ending a pregnancy is a fundamental liberty interest. The constitutional right to abortion was also argumented in the light of history and tradition. History and tradition provide support for the conclusion that Constitutional “liberty” from the 14th amendment includes a person’s right to end a pre-viability pregnancy.
With all this in mind the respondents argued that the key insight of Casey and Roe is that the decision of having an abortion has deep constitutional roots. This constitutional sense of “liberty” includes a person’s right to bodily integrity and personal autonomy in matters such as family, medical care and faith. The respondents underlined that the right to “physical autonomy” as well as “bodily integrity” has been reinforced as an important component of liberty in numerous other cases as well (Sell v. United States, 539 U.S. 166, 178–79, 183 (2003); Ferguson v. City of Charleston, 532 U.S. 67, 78 & 78 n.14 (2001) (citing Whalen v. Roe, 429 U.S. 589, 599–600 (1977)); Washington v. Glucksberg, 521 U.S. 702, 720 (1997)).
What was particularly interesting in the case were the arguments raised about the viability line. The viability line means that ending a pregnancy has been a right for women before viability of the fetus. Viability is defined by the Court to be “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb” (Casey 505 U.S. at 846, 870–71). The respondents firstly argued that the viability line is an essential doctrine in Casey and Roe. The respondents also claimed quite boldly that none of the petitioners’ arguments offer ground for dismissing the viability line. From the respondents’ point of view the State’s argument that viability may move earlier was already properly discussed and rejected in Casey. The respondents claimed that no factual circumstances prove that viability may occur earlier than 23-24 weeks into pregnancy. This fact was also properly identified in Casey.
The respondents stated that Mississippi did not offer an alternative for the viability line. Therefore, if and when Casey and Roe are overturned, there will be no remaining legal framework for the possibility of having an abortion. This might result in a situation where abortions could be prohibited all in all.
The respondents also raised a point on how well the viability line has been implemented by the courts. Contrary to the opinion of petitioners where it was claimed “hopelessly unworkable”. The respondents argued that the viability line is clear and has in no sense proven to be “unworkable”. Federal courts have applied the viability line with great success, remarkable predictability and uniformity for over five decades.
An interesting aspect was also the petitioners’ arguments about women’s health. The respondents underlined that the State’s arguments regarding the safety of abortion were false. The respondents were also quick to point out that Mississippi raises no new arguments regarding women’s health that the Court has not seen and addressed previously. Also in Casey the Court declared that it is up to the woman to weigh the risks of a pre-viability abortion and compare such risks with the risks of continuing pregnancy and the risks of childbirth (Casey, 505 U.S, 878). The respondents argue that even though abortion has been proven to be more of a risk to women’s health later the abortion is done, that the State’s own argumentation alone proves that abortions as a whole have become safer for women specifically in the past 25 years. The risk of death from legal abortion during the span of 25 years has declined a total of 85 %.
The respondents also raise that the only alternative to a safe abortion is to continue pregnancy, which itself presents substantial risks to one’s health. At this moment pregnancy and childbirth is 14 times more likely than abortion to result in the death of a woman. The respondents also underline that childbirth has become more dangerous in the United States during the recent years while legal abortion continues to be safer for women over time. From these statistical facts it is clear in my opinion that pregnancy poses more of a threat to women’s safety, health and life than legal abortion.
The respondents argued that the State’s arguments regarding that modern contraception and policy changes render abortion unnecessary are not only false but also paternalistic. The respondents note that firstly the State misunderstands the nature of the question on hand. The respondents underline that the issue at hand is whether women are granted the right and ability to decide if and when and how many children to have, and there are no policy changes possible to take that liberty and fundamental right from a person.
The state claimed that due to modern contraception, abortion is not necessary. Respondents were quick to point out that statistically one in four women has made the decision to end a pregnancy during their lifetime. Therefore, it is not coherent to argue abortion to be unnecessary by any means. The respondents point out that contraception is not universally accessible or affordable in the United States, contrary to what the petitioners claim. Contraception is not universally accessible particularly to young people or people in poverty, and these groups are generally also in need to end a pregnancy for the most pressing reasons.
Despite the respondents’ extensive and fact-based argumentation on behalf of the constitutional right to abortion Roe and Caseywere overruled by the Supreme Court. The Court justified the majority opinion by claiming the constitution to be neutral in the case and therefore the jurisdiction should belong to States’ in the matter. For these reasons the Court sees that it has no jurisdiction on deciding in abortion.
E.P.M.J.