Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. Supreme Court case was decisive in terms of the regulation of abortion in the USA. With the case, the Supreme Court ruled that there is no constitutional right to abortion, at the same time overturning two precedents that found the opposite, Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833). The above-mentioned result meant that, in the future, states will be allowed to define their own abortion laws and the condition for banning abortion is no longer the viability of the fetus.
So what were the arguments the petitioners used to justify their opinion regarding abortion legislation to the Supreme Court, and were they questionable? The petitioner’s arguments were based on the following themes; absence of a constitutional basis, women’s health, alternative means such as adoption and invalidity of the condition of viability.
The petitioners based their arguments mainly on the fact that the right to abortion completely lacks a constitutional basis. It is true that nowhere in the constitution is there an explicit mention of the right to abortion, nor in history or tradition. As a result of that, the petitioners claimed that the precedents Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned because their conclusions are unconstitutional. According to the petitioner’s opinion, due to precedents, states are deprived of the opportunity to protect the health of unborn children and women.
In their argumentation, the petitioners went through various problems caused by the fact that the right to abortion has no basis in the constitution. One of the problematic situations that arise is that the court does not have the opportunity to objectively weigh the right to abortion, which is also supported by Id. at 2136 (Roberts, C.J., concurring in judgment). The petitioners also brought up a case from 2021 when the five justices who upheld the court’s June ruling could not agree on what the case Planned Parenthood of Southeastern Pennsylvania v. Casey meant, and the five justices who agreed on what Casey meant did not reach a consensus on the verdict. The petitioners wanted to highlight how it is impossible for the court to interpret two precedents that contain a far-reaching interpretation of, for example, the protection of privacy, and what it means in practice when it comes to abortion.
The petitioners appealed to the 10th Amendment to the Constitution, which states that powers not delegated to the United States by the Constitution or denied to the states by it are reserved to the states or the people respectively. In addition, the 14th Amendment to the Constitution was brought up, according to which no state shall deprive any person of life, liberty, or property without due process of law. Thus, in light of the arguments referring to the wording of the Constitution, abortion legislation should be left to the states. I partly understand the opinion of the petitioners, that the precedents Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are problematic because they state that abortion is a constitutional right and cannot be denied before viability. However, the petitioners appeal to a strict literal interpretation, completely detaching the precedents from the social context. In the precedent case Roe v. Wade, the court has based its decision on the protection of privacy and in accordance with the Due Process clause, the freedom that the court has granted to certain “personal decisions” in which, in my opinion, having an abortion is strongly included. However, the petitioners argued that The Constitution does not protect a general “right of privacy.” It protects aspects of privacy through specific textual prohibitions on government action (e.g., U.S. Const. amend. I, IV) or structural features that limit government power. No textual prohibition or structural feature guarantees a right to abortion. Petitioners also pointed out that none of the Court’s prior cases involving liberties or privacy interests includes, like abortion, “the intentional termination of potential life” (Harris v. Mcrae, 448 U.S. 297, 325 (1980).
The respondents counter-argued that it doesn’t really matter that the word abortion is not found in the Constitution, history or tradition. They appealed to the fact that a woman’s right to freedom of choice and bodily integrity can still be derived from the Constitution. However, is it problematic if the possibility to deviate from the wording of the constitution is given? Does the court’s changing interpretations of the Constitution, which do not fully follow the wording, possibly endanger legal certainty? Or is the pressure to change the legislation to better reflect the rights of today’s women more important than the legal certainty that could be jeopardized with the development of society? I also think that if legal certainty were always prioritized above the urgent need to change the law, our society and for example, women’s rights would not have the opportunity to develop for the better at all.
As a result of the Roe v. Wade, regarding the unborn child, the court considered that it means “the ability to have a significant life outside the mother’s womb”, the so-called viability condition, according to which abortion cannot be prohibited until viability is achieved. According to Roe v. Wade the ability to live outside the womb usually happens between 24 and 28 weeks after conception. The fact that abortion lacks a constitutional basis in the opinion of the petitioners, also supports their demand that the court should remove restrictions on abortion before viability. Viability starts at 15 weeks of pregnancy in the petitioners’ opinion. According to the petitioners, the viability condition also lacks constitutionality and thus it must be rejected as a condition for banning abortion. However, it is problematic to remove the previous viability condition, as it increases the number of cases where a woman does not get a real opportunity to choose whether she wants to continue the pregnancy or not. Many women may not even know they are pregnant at the 15th week of pregnancy.
The brief of petitioners argues against abortion, one of its arguments being the possible harm it causes to the woman. The legislator stated that the state has a legitimate desire to protect women’s health throughout pregnancy. According to them, in the worst case, abortion risks a woman’s physical and mental health, for example by exposing her to various tears, blood clots and depression. When reading the above-mentioned arguments regarding the possible health harms caused by abortion, I can’t help but wonder if the petitioners have at all taken into account the harms to a woman’s health that follow from unwanted pregnancy and from carrying the child until birth? However, if we take into account what the Center for Health Statistics tells us about the 2022 US statistics regarding maternal mortality, 23.8 women died in childbirth per 100,000 live births. For example, in Canada the figure is 7.5 and in Finland 4. While deaths caused by abortion are 0.43 per 100,000 abortions.
The respondents defended the right to abortion and the precedent Roe v. Wade in that an unwanted pregnancy would have harmful effects on the woman’s planned future, for example in terms of career. However, the petitioners objected that today there are numerous women with families who, despite the situation, have reached a high level educationally and financially. From the arguments of the petitioners, a conclusion can be drawn from the so-called “everyone is the smith of his own luck” thinking model. Unwanted pregnancy and having a child, according to the petitioners, does not mean that the fate of the woman for the rest of her life is predetermined. It is true that women with a durable support network and a wealthy starting point may be able to organize their everyday life in such a way that their career or education does not suffer. However, the argument does not take into account all the possible starting points that an unwanted pregnancy scenario can have. For example, single parents or women who lack a support network of loved ones or who are in a lower socio-economic status are left in a different position when the child comes into the world.
In addition to women’s health, the petitioners offered alternative options for abortion if the unwanted pregnancy does occur. The arguments were, for example, how today’s contraceptive methods and their wide availability would prevent unwanted pregnancy. The argument is valid if we think in black and white that all unwanted pregnancies are caused by irresponsible unprotected intercourse. In the argument, it is also assumed that you are aware of the risks of sexual intercourse and that no hormonal contraceptive method prevents pregnancy with 100 percent certainty. In my opinion, it should also be stated that even if both parties knowingly engage in unprotected sex, ultimately the woman bears the consequences of unintended pregnancy.
I think the above-mentioned arguments only work if we ignore exceptional situations. The argument does not take into account, for example, the fate of women who became pregnant as a result of rape. In addition, the assumption that pregnancy is preventable in all situations by using contraception ignores the variable level of sex education in the US school system and the status of the poor in obtaining paid contraceptive methods and the health care they require.
In addition to advanced birth control methods, adoption was brought up as one option for women who do not wish to have a child themselves. It is true that it is possible to find a child through the adoption system with parents who themselves suffer from, for example, involuntary infertility. However, I think that proposing adoption to a woman who has become pregnant against her will is narrow-minded. It does not remove the mental and physical pain that pregnancy and childbirth cause to the mother. A child’s entry into the adoption system does not protect the child’s rights.
I found it really interesting to get to know the brief of petitioners because I feel that after the Dobbs v. Jackson Women’s Health Organization case, the mainstream media mostly covered only one side of the case. In the media, the arguments that the petitioners had presented as their justification were not so much brought up. However, in order to understand the legal case in question, it is necessary to know the positions of both sides.
Inevitably, however, when reading the arguments of the petitioners, I got the feeling that they have a rather black-and-white approach to abortion and its conditions, without taking into account the many situations a woman can be in when she gets an unwanted pregnancy. I feel that the arguments of the petitioners would be valid and functional if we lived in an ideal world where women would have access to the necessary financial and emotional support from their close circle. Their arguments shine through with the belief that everyone is in exactly the same position and has the same starting points for bringing a child into the world, ignoring the low-income class and women who have been victims of crime. However, in my opinion, even if a woman has a good starting point for having a child, it does not mean in any situation that her bodily autonomy should be violated by the state by banning abortion.
It is interesting to compare the brief of petitioners to the brief of respondents. I think they reflect really different approaches to the whole abortion issue. The brief of respondents primarily emphasizes the rights and freedom of choice of the woman, the mother, as well as the autonomy of the body. While the brief of petitioners highlights the rights of the unborn child. A good example of a different attitude is how the respondents defend the precedents Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey was guaranteeing equality between men and women by giving women the right to choose. The petitioners, on the other hand, said as a counter-argument to this that banning elective abortions is supported by both women and men, and it protects unborn girls and boys equally, thereby guaranteeing equality between the genders.
The respondent’s point of view takes more into account the social situation and the rights achieved by women in it, while the petitioners would like to stick to the exact wording of the Constitution and deal with it in a vacuum, so to speak, without taking into account the changed society around and the change it requires from the legislation.
E.P.M.J.