Dobbs v. Jackson Women’s Health Organization is often characterized as one of the major landmark Supreme Court decisions that have taken place after the composition of the Court became generally more conservative in the late 2010s. The Dobbs decision effectively ruled that abortion isn’t a liberty protected by the Constitution. Furthermore, it also overruled another previous landmark decision, Roe v. Wade, which on the contrary protected abortion as a constitutional right up to the point of fetal viability, also known as the point after which the fetus could survive outside the womb. Additionally, Dobbs also overruled Planned Parenthood v. Casey, which can, for the purposes of this text, be simplified to have upheld Roe.
The main point of this text is to examine the reasoning the Court used in its majority opinion. It is important to note that this is merely an overview and primarily a summary of the entire 79-page opinion written by Justice Alito.
The Dobbs case was originally about whether the State of Mississippi could legally prohibit abortion after 15 weeks of pregnancy or not, which is several weeks before the point at which the fetus is considered viable as determined in Roe. It is then stated that the State argues that the Court should reconsider and overrule Roe altogether and, on the other hand, the respondents argue that allowing Mississippi to prohibit abortion “would be no different than overruling Casey and Roe entirely” (Brief for Respondents), p. 43. The Court then assesses that neither side wish for “half-measures” and that the Court must within this decision either overrule or uphold Roe.
However, it is noteworthy that Justice Roberts points out in his concurrence that the States original request was for the Court to “clarify whether abortion prohibitions before viability are always unconstitutional” (Roberts, C.J., concurring), p. 5, and that it only later changed its course by arguing the need to overrule Roe. Justice Roberts further argues that the Court should “leave for another day whether to reject any right to an abortion at all” (Roberts, C.J., concurring), p. 7. On the other hand, the Court argues in its majority opinion that the question regarding Roe would either way rise in the near future, explaining that the states would try to argue for further lowering the pregnancy time at which point onwards abortions are illegal.
Having established fairly early on that it needs to revisit and possibly overrule Roe, the Court factors in the stare decisis principle, which requires the Court to adhere to the precedent set by previous judgements when making its decisions. It is quick to point out that stare decisis isn’t absolute and even set precedent can be overruled. The Court then lists other occasions when it has overruled precedents throughout history, most notably Brown v. Board of Education, which overruled the precedent set by Plessy v. Ferguson.
It should again be pointed out that the purpose of this text isn’t to further investigate the overall bases of overruling precedent and thus how to deviate from the stare decisis principle. However, it is noteworthy to point out that the Court goes to great lengths to show its general regard to the principle while also explaining the ways in which precedent can be overruled in the case of Roe in particular. The Courts reasoning rests on four key points: poor reasoning, error of the Court in deciding the case, poor workability, and negative effect to other areas of the law and the society as a whole. And while examining Roe, the Court goes on to strongly criticize the whole decision in its entirety, which in turn raises the question on the contradiction with the Court emphasizing high regard to its previous decisions and set precedent.
The biggest focus of the Courts critique on Roe is aimed at its constitutional and historical backing or rather lack of. The Court even states that Roe broke an “overwhelming consensus” within the U.S. to regard abortion as illegal.
In addition to the originalistic method into assessing what was the attitude towards abortion throughout the common law history, the focal point of the Courts reasoning is that it doesn’t have a constitutional right to decide upon an issue like abortion. It argues on many occasions throughout its reasoning that abortion is a moral dispute in which both sides can be in good conscience arguing for their view on the issue. Therefore, the Court decides that the people themselves and their elected representatives within each state should be able to decide on it without federal legislations interference.
The main differences that the Court makes between abortion and other more recently recognized rights, such as same-sex marriage, is that abortion concerns “potential life”. A term, which in itself is somewhat controversial, meaning that it isn’t all that simple to decide from which point onward can “potential life” be considered to have begun from. And while it might be rather easy to argue that rights, such as same-sex marriage, don’t even remotely threaten any form of life, things like contraception that prevent the zygote from attaching to the wall of the uterus, create a whole new problem to consider when talking about one’s rights and liberties.
However, the Court does emphasize “that our decision concerns the constitutional right to abortion and no other right” and that this opinion should not be used to “cast doubt on other precedents that do not concern abortion”.
The Court also goes on to recognize that its decision is likely to receive a lot of public backlash, but it stresses that it cannot let public opinion affect its work, which in this case is doing legal interpretation on what is and what isn’t a constitutionally protected right. Furthermore, the Court even notes that its decision is not made under any sort of political pressure nor does it reflect the personal values of its justices.
In conclusion, it is still difficult to look at the Courts reasoning and wholeheartedly believe that no personal values of the justices played any role in the making of its decision. Since, when dealing with things that can be regarded as liberties, even not taking a stance is a stance. And only time will tell if this does in fact open the door for other recently recognized rights to be questioned in front of the Supreme Court. Because even though the Court specifically said that this decision can’t directly be used as precedent against overruling other rights, it certainly put the possibility of doing so out there and gave everyone at the very least a reason to believe that the Courts stance might be more conservative than in a long time.
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