Category: SCOTUS 2023

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.

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.

The Dobbs v. Jackson Women’s Health Organization concerns a crucial ruling that discusses the constitutionality of the women’s right to abortion. The dispute in this case concerns the legality of the state law of Mississippi that prohibited abortions after 15 weeks of pregnancy. When considering the outcome of this case, it is vital to review the majority opinion of the Supreme Court. In Dobbs v. Jackson Women’s Health Organization, the Court stated that they do not possess the jurisdiction to declare the constitutional right to abortion nor declare the constitutional ban on abortion. Moreover, the Court highlights the importance of not considering the Constitution neither pro-life nor pro-choice. The Constitution should be considered neutral and therefore the issue of abortion should be addressed to the people and their elected representatives. Furthermore, the Court implies that the people should resolve the issue of abortion, just like the other questions of American social and economic policies, which the Constitution does not have authority to address.

The Court takes a view on the previous cases in its decision – overruling Roe v. Wade and Casey v. Planned Parenthood. The Court claims that the Court in Roe did err by taking sides on the issue of the abortion. The Constitution does not grant power to decide on these important moral issues. They base its decision on the particular fact that there is no mention of abortion in the Constitution nor in the Nations’ history, and therefore, Roe and Casey should be overruled.  Moreover, Roe has caused major negative jurisprudential and real-world consequences, and it is necessary to overrule Roe and Casey.

The Court in Roe and Casey stated that women’s right to abortion is considered as a constitutional right as it falls under the liberty in the 14th Amendment. However, the Court argues that abortion cannot be considered under the branch of liberty. As mentioned previously, the Constitution does not recognize abortion, and no constitutional provision, including the Due Process Clause of the 14th Amendment, provides implicit protection for it. This clause has been used to recognize the rights that are not explicitly written in the Constitution, but these rights must have a strong historical tradition or be crucial for the ordered liberty. Until the late 20th century, American law did not acknowledge abortion as a right. At the time when the 14th Amendment was enacted, abortion was illegal in three-quarters of the states at all stages of pregnancy. The right to abortion differs from the other rights recognized as part of the 14th Amendment’s protection of liberty, such as intimate relationships, contraception and marriage. This certainly raises a question – when can the Supreme Court overturn its misguided decision? Or in particular, what sort of erroneous decision can be overturned by the Supreme Court? According to the Court itself, the incorrectness of a precedent does not necessarily mean it should be overruled, but as the Court further explains, Roe has caused negative effects both in legal practice and in theory, including the legal disputes which were addressed in Casey. By taking a stance on a controversial issue that is not specified in the Constitution, the Court in Roe went beyond its constitutional authority, distorted the perception of the court’s role and caused harm to the state’s interest in protecting fetal life.

The opinion raises another question of whether this leads to the weakening of the protection of other rights. Nevertheless, the Court underlines that this ruling concerns the constitutional right to abortion and not any other right. Moreover, the opinion mentioned above does not challenge precedents unrelated to abortion. However, at this present time it is extremely relevant to consider what the outcome of this case will lead to for the rights of women and other minorities. In order to understand the problematic nature of this case, one must compare and examine the arguments between the majority and minority as well as consider the general impact on equality between the states.

E.P.M.J.

On June 24, 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization stating that there is no constitutional right to abortion, reasoning that “abortion is not specifically mentioned in the U.S. Constitution”, and “abortion is not rooted in the nation’s history and tradition,” nor is it an “essential component of ordered liberty.” Justices Breyer, Sotomayor, and Kagan filed a powerful jointly drafted dissenting opinion where they argued that Dobbs’ ruling sees women as “second-class citizens”. They also contested the majority’s originalist interpretation of the Constitution and gave us a glimpse to the future and to the possible consequences of the decision.

To start with, the dissent attacks the majority’s “core legal postulate”, that today in the 21^st century we should read the Fourteenth Amendment just as its ratifiers did. Therefore, because the ratifiers didn’t see reproductive rights as part of the Fourteenth Amendments guarantee of liberty, neither should we. Unfortunately, those (men) in the 19^th century did not recognize women as equals nor recognized women’s rights at all. The dissenting justices point out that the Constitution is not meant to be interpreted according to “the sentiments of one long-ago generation of men”. The terms “liberty” and “equality”, were written in a universal form, to allow room for evolution in their “scope and meaning.” The dissent states that applications of those open-ended terms can develop whilst remaining “grounded in constitutional principles, constitutional history, and constitutional precedents.” The dreadful outcome of the majority’s originalist interpretation of the Constitution is that it “consigns women to second-class citizenship.”

The dissent also pays attention to the Court’s determination to stay “neutral”. By leaving the decision-making about abortion to the States, the Court does not act “neutrally”. The decision taking away a right to abortion, which women have held for 50 years in the United States, does not make the Court “scrupulously neutral”. The fact is that by removing a woman’s right to choose whether to have a child “does not mean that no choice was being made”. As Breyer, Sotomayor, and Kagan demonstrate, the right to choose is taken away from women and given to the States. 

How does this all affect women? For half a century Roe and later Casey have protected the liberty and equality of women. For women to be able to participate “fully and equally in the Nation’s political, social, and economic life”, they must have control over their reproductive decisions, as Casey recognized. The majority, however, does not think that forced childbirth has anything to do with a woman’s right to equality and freedom or that a woman’s control of her body has any constitutional significance incorporated to it, as Breyer, Sotomayor and Kagan disclosed. The outcome of Dobbs is that the constitutional regime now acknowledges only the State’s interest in protecting prenatal life and erases the woman’s interest. A striking fact the dissenting justices point out in the Court’s ruling is the lack of discussion about possible effects on women and especially on women living in poverty. In States where abortions are illegal, women who cannot afford to travel to another state to obtain an abortion, have a possibility to lose their lives due to unsafe abortions. So, when does the Fourteenth Amendment’s protection of life “kick in?” As shown in the Brief for the Howard University School of Law Human and Civil Rights Clinic as Amicus Curiae, a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. The majority’s answer to this is that “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” However, as the minority’s opinion tells us, sometimes contraceptives fail, not all sexual activity is consensual and sometimes the party at risk of pregnancy can not make the decision about contraceptives. To conclude this, at least one result of the Court’s ruling is certain: “the curtailment of women’s rights, and of their status as free and equal citizens.”

Finally, the dissenting opinion paints a worrying picture about the future. Although the majority states that “nothing it does casts doubt on precedents that do not concern abortion”, the dissenting justices argue that all rights with no history stretching to the mid 19^th century are at stake. Settled freedoms involving bodily integrity, familial relationships, and procreation, are all part of the same constitutional structure which protects autonomous decision-making over the most personal decisions. For example, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. As demonstrated earlier, the dissent tells us that “the majority’s departure from Roe and Casey rests only on whether a woman’s decision to end a pregnancy involves any Fourteenth Amendment liberty interests”. The conclusion was that no liberty interests are present, because woman’s choice wasn’t protected in the 19^th century. An interesting point was then brought up; the law also didn’t protect same sex intimacy and marriage, marriage across racial lines or right to use contraceptives nor right not to be sterilized without consent. Following the majority’s legal analysis all decisions protecting those rights were wrong as well. The possibility is that any issues with a moral dimension can be taken out of the Fourteenth Amendment and into state legislatures. Another worrying glimpse of the future comes from Justice Thomas’s concurrence. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.” All in all, the significance of the Court’s opinion and which rights it will affect, will rest in the future.

“As of today, young women will come of age with fewer rights than their mothers and grandmothers had.” Those are the words of the dissenting opinion, and they demonstrate a distressing future for the many millions of American women who lost a fundamental constitutional protection due to the majority’s decision. Just to say, according to The New York Times, in January 2023 most abortions are now banned in at least 13 states and in many states the fight over abortion still continues in courtrooms. 

E.P.M.J.

In 1973 one of the landmark cases regarding abortion, Roe v. Wade, 410 U.S. 113 (1973), was established. In Roe v. Wade, a pregnant woman brought a class action challenging the constitutionality of the Texas criminal abortion laws. A majority of the Court decided that the Texas abortion laws indeed were unconstitutional. The outcome was that a state couldn’t regulate abortion during the first trimester. During the second trimester regulating was possible if regulations were related to the health of the pregnant person and during the third trimester a state could prohibit abortion unless it was necessary to save the life of the pregnant person. In this case, the Court stated that abortion was a part of the constitutional rights of privacy and decision to dividing pregnancy into three trimesters were to balance state’s interest, protecting the potential human life, with privacy rights. 

The legal system in the U.S. builds on a case law system; norms and principles are established in previous cases, precedents. Stare decisis is a doctrine which means that lower courts are bound to follow the Supreme Court precedents but also that the Supreme Court should follow its own precedents. It is however possible to overrule previous precedents if there is a special reason for overruling and the precedent was wrongly decided. The Supreme Court has developed four criteria to consider when overruling a precedent: workability of the standard established, the antiquity of the precedent, the reliance interest at stake and how well the precedent was reasoned. 

As you might already know, Roe v. Wade was overruled by Dobbs v. Jackson Women’s Health Organization. Opinion of the Court on the Dobbs focuses broadly on why Roe v. Wade should be overruled and considers the criteria mentioned above. In Dobbs case Court’s majority decided that “the Constitution does not confer a right to an abortion” and “the authority to regulate abortion is returned to the people and their elected representatives”. They argue that firstly, Roe v. Wade was “egregiously wrong and on a collision course with the Constitution from the day it was decided”. They also argue that the reasonings were faulty, the rule it imposes is unworkable (focusing more on Planned Parenthood v. Casey), Roe v. Wade has led to the distortion of many important but unrelated legal doctrines and overruling will not upend concrete reliance interest. One of the main arguments on overruling are that the Constitution makes no reference to abortion and the Due Process Clause of the Fourteenth Amendment, which guarantees some rights that are not mentioned in the Constitution, does not apply because the right to abortion is not “deeply rooted in this Nation’s history and tradition”.

Before Dobbs, Roe v. Wade was affirmed by the Supreme Court in Casey, and it maintained its stare decisis position. Also, in Whole Woman’s Health v. Hellerstedt and June Medical Services, LLC v. Russo the Court didn’t overrule Roe v. Wade and Chief Justice Roberts even emphasized in concurring opinion that stare decisis must be followed. 

I find it intriguing that in Payne v. Tennessee Justice Marshall’s dissenting opinion he states that “the majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination”. He then suggests that there are some “endangered precedents” under a weak stare decisis framework. Roe v. Wade is one of these cases Justice Marshall thinks is a liberal constitutional decision potentially threatened by the new conservative majority. By the time this Justice Marshall’s dissenting opinion was written, Roe v. Wade had survived overruling challenges, but this opinion shows that there was a political change in the Court even in that time. 

In Dobbs’s reasonings the Court discussed the criteria for overruling a precedent and in that way ostensibly followed the rules of procedure. Still, was there the ground to overrule a fifty-year-old precedent or should the Court have followed stare decisis? It has been presented that some precedents regarding personal liberties might be endangered if there is a conservative majority in the Court. It seems interesting to me that change in political environment can affect in the Supreme Courts line of decisions in this quantity. Is this kind of jurisdiction just?

Mississippi Too

Introduction

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court of the United States upheld the right to have an abortion. The case arose from the provisions of the Pennsylvania Abortion Control Act of 1982, in which some of the requirements for abortion included a waiting period, spousal notice and parental consent in case of minors. Casey was a divided judgment, and in the end the plurality opinion that was recognised as the principal opinion was jointly written by three justices.

Stare Decisis

At its core, stare decisis means “to stand by things decided”, so in essence the court is bound by its previous decisions. The respect of precedent was acknowledged by the plurality opinion in Casey as well, as the justices engaged in some discussion regarding Roe v. Wade, 410 U.S. 113 (1973) and how the precedent set in Roe should be followed in Casey.

In their analysis, the authors of the plurality opinion stated that even unpopular and disapproved decisions should be upheld unless the rule of the decision had become unworkable. They found no evidence of that having happened to Roe’s essential holding, instead stating that it had changed women’s lives and had been assimilated into the concept of liberty and personal autonomy in the society. As the rule established in Roe was relied upon by many, there had not been any developments of the law that would have made the rule a remnant of abandoned doctrine, and the facts remained the same, the authors of the plurality opinion saw no reason why stare decisis would not apply in Casey.

They also went on to emphasise that the reason why the stare decisis doctrine was so essential to their legal system as a whole had to do with the predictability and consistency of judicial decision-making. The decisions of the court should not be changed purely because the members of the court had changed. Legitimacy of the court came from the fact that the decisions were grounded in legal principles, not on the personal views of the justices, and as such the decisions could survive the test of time.

Changing and replacing

While the court found that there was no reason to overrule Roe, the plurality opinion still ended up changing and replacing some of the criteria for the right to abortion that was established in Roe. The trimester framework used in Roewas overturned and replaced by a viability analysis, which allowed the states to restrict access to abortion after the fetus could be considered viable but at the same time prohibited the states from placing an undue burden on the women’s access to abortion prior to fetus viability.

Similarly, the plurality opinion overturned Roe’s strict scrutiny test in favour of the undue burden standard. With strict scrutiny, the state must demonstrate that a law infringing on a constitutional right is necessary to achieve a compelling state interest, is as narrow as possible and uses the least restrictive means to achieve its purpose. Undue burden standard, as it was applied in Casey, meant that the court had to consider the obstacles to abortion access placed by the law together with the benefits that could come from the burdensome law. As such, the plurality opinion held that the states were not allowed to make laws that would place substantial obstacles to women’s access to abortion prior to fetus viability.

Conclusion

Despite the plurality opinion’s lengthy discussion about the stare decisis doctrine, the court still overturned some parts of Roe. For this reason, Chief Justice Rehnquist argued that the entire section where the plurality considered the stare decisis doctrine was obiter dicta, “said in passing”, and thus was not part of the binding judgment. No matter whether one considers the plurality opinion’s stare decisis analysis obiter dicta or ratio decidendi, the curious nature of stare decisis in Casey is still clearly visible — while the court claims to be bound by the precedent, the court still does change parts of it.

Mississippi Too

The Supreme Court of the United States has gone through a noticeable transformation and ideological shift during the recent years. The appointments of three conservative judges by the President Donald Trump radically changed the composition of the Court shifting its approach towards more traditional and obsolescent interpretation of the law. On the 24^th of June 2022 the Court overruled two important precedents protecting people’s right to abortion, declaring that the Constitution does not confer the right. The ruling had a major impact on the American society and soon after the decision many states regulated laws that were to restrict or ban abortion. The decision was considered widely controversial and questioned by many legal scholars and professionals. 

In Dobbs v. Jackson Women’s Health Organization, the Court overturned two precedents protecting people’s right to abortion: Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. Both decisions recognized a federal constitutional right to abortion before fetal viability giving the states the power to regulate, but not to ban, abortions (New York Law Journal, Sept 6^th, 2022). Beforementioned case law was the most significant legal instrument protecting the right to abortion on the federal level, as the right as such is not included in the US Constitution or in its Amendments. In addition to the societal significance of overturning the previous case law in question, what made the Dobbs decision also exceptional was its contradiction with one of the important principles of the US legal system, the doctrine of stare decisis. 

According to the stare decisis principle, the Supreme Court should follow “the principles, rules, and standards of its prior decisions when deciding a case with arguably similar facts” (Black’s law dictionary 1626, 10th ed. 2014). The Court had already concluded in both Roe and Casey that the Constitution, and more particularly its 14^th Amendment, conferred the right of an individual to have an abortion. The Roe decision, in which the right to abortion was first established, goes back to 1973. Thus, the right has been recognised in US case law for almost 50 years giving it a seemingly strong foundation. Nevertheless, as the right was never made a part of the written federal law it was vulnerable to occurring changes in the Court’s views. It was often a topic of public discussion how the legal protection around the right was too weak and how it should be made stronger.  This public concern around abortions rights did not make stare decisis seem like a particularly strong principle as the legal protection established in the Court’s previous decisions was obviously not trusted.

In the Dobbs Case the Court’s reasoning to go round stare decisis and overturn its previous precedents relied mostly on the constitutional nature of abortion rights. The Court noted that stare decisis “is not an inexorable command” and “is at its weakest when we interpret the Constitution” referring to the previous case law concerning stare decisis (Dobbs p.4). In addition, the Court emphasised how “some of the Court’s most important decision have overruled prior decisions” (Dobbs, p. 4). Furthermore, the Court noted how in certain circumstances the constitutional decisions must be reconsidered. All in all, when taking on the account the significance of this decision, the reasoning of the Court was left quite vague and lacking. To overturn such important precedents and circumvent stare decisis it would be reasonable to expect the Court to deliver more specific and convincing set of facts and justifications for its ruling.   

The Court’s actions can be considered problematic not only from the point of view of women’s rights but civil rights in general. One of the main purposes of stare decisis principle is to make law and legislation coherent and consistent, to establish a pattern of case law that follows and reflects the society and its development. Even though it must be made possible for the Court to overrule its previous precedents to stay up to date, when talking about the deprivation of abortion rights, the decision to overlook stare decisis should not be made without proper consideration. Overturning previous case law regarding people’s fundamental rights has obviously other consequences. It is now made possible for the Court to also challenge other unwritten rights derived from the 14^th Amendment and granted by the previous case law, such as the right to contraception or the right to gay marriage (Ronli Sifris, Monash University website). This jeopardizes the entire fundamental and civil rights progress achieved in the United States in recent decades.

As stated above, the Court’s decision marked a new era in the US judicial system. In terms of the rule of law, the Dobbs case also raises several questions. In a democracy, the purpose of the legal department should be to interpret the laws regulated by the parliament with as much legal accuracy and neutrality as possible. According to many collected surveys, most of the Americans opposed the ruling in the Dobbs case and wanted to retain people’s right to abortion on the federal level. It can be considered strange and very alarming that the Court, which is not elected through parliamentary vote, is able to circumvent stare decisis and make such major controversial decisions concerning the rights of the half of the US population without majority support. 

Mississippi Too

Stare decisis means that the lower courts in the U.S. are bound by the precedents but the U.S Supreme Court should also follow its precedents. This means that when they handle a case that contains a similar question about the interpretation of the constitution or other statutory law, they must decide whether to strengthen the precedence and decide the case according to it or to overrule. The possibility of overruling must be examined trough the stare decisis criteria. 

There are four established criteria. Firstly, they must evaluate whether the standard of scrutiny used in the previous case was the right one. The antiquity of the precedent is a factor as well. The cornerstone of a working legal system and society is that all individuals and legal entities can rely on the legal certainty. For that reason, the reliance interest at stake must be evaluated when considering overturning a case. Lastly the reasoning of the precedence is evaluated. If the U.S Court takes the view that the reasoning of the judges is not sufficient or the law has been interpreted and/or applied incorrectly in their legal evaluation, the precedence holds less meaning and can be overruled more easily. 

In Dobbs v. Jackson Women’s Health Organization (later Dobbs) the stare decisis doctrine has been discussed vastly as the case overturned Roe v Wade (later Roe) and Planned parenthood of Southeastern Pa. v Casey (later Casey). With firstly in the decision the U.S Court established that in Roe the standard of scrutiny was wrong. The U.S Court stated in the Opinion of the Court that there was no need to use strict scrutiny because a State’s regulation of abortion is not a sex-based classification and thus is not subject to the heightened scrutiny that applies to such classifications. Secondly, the antiquity of the precedent was discussed in an originalist viewpoint. The constitution should be interpreted in a way they think that the constitution was meant to be interpreted at the time. There was no reliance interest at stake and the reasoning was not a factor because the Court considered that the Court made an error when deciding Roe. As is seen here, the criteria are used but it can be said that the doctrine allows the judges to amend the criteria to fit their own justifications even if many of the legal scholars disagree with their decision.

One of the main differences between these two Courts is that cases regarding the interpretation of the Constitution is in the U.S. Courts jurisdiction. In Finland, we have preliminary control in the form of the Constitutional law Committee (perustuslakivaliokunta) which evaluates the relation to the Finnish constitution of the statute the legislators have prepared. Therefore, issues regarding Constitutional interpretation seldom rises in the Finnish Court. 

In Finland, the legal ground for the precedents to be binding towards the Finnish Court itself is found in the Working Order of the Supreme Court and in the Supreme Court Act. In chapter 2 article 7 of the Supreme Court Act it is stated that the president of the Republic can refer the case to be handled in a plenary session if when deciding the case, it comes to light that the Court is deviating from its previously adopted standpoint in a certain matter. In chapter 2 article 24 of the Working order of the Supreme Court it is stated that the Court must inform the President of the Republic if the decision departs from a legal principle or interpretation of the law previously adopted by the Supreme Court. This means that formally the Finnish Court is bound by its former decisions and that there are certain aspects need to be evaluated when they “overrule” a precedent. 

In the Finnish Court system, the stare decisis doctrine exist in a rather different form. There are no established criteria that the previous case must pass so that overruling could be possible. It evaluates case by case whether there is a reason to deviate from the established decision-line. The Finnish Court does this firstly by selection of the leaves of appeal and does not grant the leave if they see no reason to evaluate the legal question and amend its previous decision. 

Most of the “overruling’s” stem from simply statutory changes which automatically annul the previous decisions regarding the subject. The Finnish Court evaluates is the precedent sufficiently formulated and justified and if the reasoning is no longer acceptable in the light of statutory and societal changes, the decision is easily overturned. This means that in Finnish court system the precedents cannot withstand ageing well due to everchanging societal needs and statutes and the resulting changes in the interpretation and evaluation of the statute and case at hand. There are a few viewpoints the Finnish Court considers when they decide how much weight they put on the precedent. A recent, unanimously decided case with justified and well written reasoning holds more meaning as a precedent. 

So overall we can state the obvious, the main differences between the two systems stems from the simple fact that in the U.S. the legal system relies heavily on case law whereas in Finland the law is codified. The stare decisis doctrine has been established by the U.S. Court itself and is not codified, when in Finland we can find the doctrine of horizontal bindingess in the above-mentioned statutes. In Finland there is real difficulty in finding a judgement where it is mentioned that the decision overrules a previous one. The Finnish Court very rarely cites a precedent, even if they are overruling it. Most likely they will refer to the former judicial practice vaguely, but the reason for the overruling can be found elsewhere in the judgement. In the case KKO:1995:215 it is stated that as a general guideline; “Established precedence should not be changed without a weighty reason. On the other hand, even well-established precedence cannot prevent the Court from reassessing the basis of previous decisions”. In the U.S., the cases can be established for the sole reason to overrule a precedent. This is the case with Dobbs, in the Brief for Respondents it is stated that they know that the whole case is designed to overrule Roe and Casey, and this would lead to banning abortions.

Mississippi Too

On June 2022, the U.S. Supreme Court decided the case of New York State Rifle & Pistol Association v. Bruen. The case concerns the Second Amendment of the U.S. Constitution and the constitutionality of New York’s concealed carry licensing regime. This brief analysis is based on the majority Opinion of Bruen, and consists of the facts, decisive legal problems and arguments of the case. The text concludes with some observations of the Second and Fourteenth Amendment and the post-Bruen regulation of the State of New York.

In the State of New York it is a crime to possess any firearm without a license and open carry of handguns is completely banned. With a license, possessing a concealed handgun in public is permitted. In the context of the U.S., 43 States have ”shall issue” licensing laws for permitting a license to carry a handgun, while 6 States, including New York, are “may issue” jurisdictions. The former contains that authorities issue licenses whenever an applicant satisfies the statutory criteria. Contrary to this, the latter allows authorities to deny licenses even if an applicant satisfies the criteria. For instance, before Bruen, New York applied a “proper cause” standard, which was not defined in any statute.

The courts of New York have held that to fulfill the “proper cause”, an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community.” If an applicant could not prove this, the license for public carry could be issued only restricted, not unrestricted. This restricted license encompasses to carry a firearm only for a limited purpose, such as hunting or target shooting.

The petitioners of the case are New York State Rifle & Pistol Association and its two members. NYSRPA is a firearms advocacy organization which aims to secure the Second Amendment rights of New Yorkers. The members, Koch and Nash, are law-abiding, adult New York residents. The case originated from their applications for unrestricted licenses to carry a handgun publicly for self-defense which were denied by the State officials of New York. These officials, the respondents of the case, denied the unrestricted-license applications for reason Koch and Nash failed to fulfill the “proper cause” requirement.

According to the Second Amendment “– the right of the people to keep and bear Arms, shall not be infringed”. The parties dispute whether New York’s law infringes the constitutional right of individuals to carry handguns outside the home for self-defense. In other words, the denials of petitioners’ license applications were alleged to violate the rights conferred in the Second and Fourteenth Amendment. The Supreme Court granted certiorari to decide the case and limited the trial to the question: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”.

The petitioners of the case utilize a “text, history, and tradition” approach to argue that New York’s law, specifically its proper cause requirement, violates the Second Amendment. The respondents focused on demonstrating the consistency of New York’s proper cause requirement and Nation’s historical tradition of firearm regulation.

Despite the vast historical record of the American tradition provided by the respondents, the Court concluded that respondents failed to meet the burden to justify New York’s proper cause requirement. In principle, the Second Amendment grants a right to “all Americans” to bear arms in public. The requirement of law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” thus violates the constitutional right. The Court noted that the right to bear arms publicly for self- defense is not a second-class right when compared with the other rights enumerated in the Bill of Rights. There are no grounds for demonstrating any special need for self-defense to obtain the license.

After the Court declined to adopt previously applied “two-step” approach in Bruen, it emphasized the standard of applying the Second Amendment. This standard directs that when the plain text of the Second Amendment covers an individual’s conduct, the Constitution shall protect that conduct. In Bruen, the Second Amendment’s plain text guarantees Koch and Nash a right to bear arms publicly for self-defense. It follows that New York’s regulation must be consistent with the Nation’s historical tradition of firearm regulation.

Studying Bruen in more detail, one can notice that the Court applies the doctrine of “incorporation”. The Second Amendment, as a part of the Bill of Rights, was originally directed to Federal Government, not against the States. The historical method the Court applies in Bruen, leads to the observation that New York is actually bound to respect the right to keep and bear arms, not because of the Second Amendment, but the Fourteenth Amendment instead. The Court stated that through the Fourteenth Amendment, the Second Amendment right made applicable against the States. The Court ruled that New York’s proper cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens exercising their Second Amendment right to keep and bear arms in public for self-defense.

The 6-3 decision was in favor of the petitioners and struck down the New York law. After the law was invalidated in Bruen, New York has enacted legislation as a counterbalance to the altered circumstances. However, the new statute of New York has been claimed to attempt to circumvent the decision, for instance, by expanding the scope of “sensitive places”. In sensitive places carrying a firearm is prohibited, regardless of a person possesses a valid license or not. The reform will probably raise questions whether Bruen has already been overruled by the new statute of New York and lead to further discussions.

T. A. M. V.

In New York State Rifle & Pistol Association, Inc. v. Bruen (2022) the U.S. Supreme Court held with a 6-3 conservative majority that the Second Amendment encompasses the right to bear arms in public for self-defense. Moreover, for a modern firearm regulation to be constitutional, it must be “consistent with the Second Amendment’s text and historical understanding”. To prove this consistency, the government must demonstrate that its law conforms to the Nation’s historical tradition of firearm regulation by providing evidence of analogous historical legislation. Applying this history-tradition methodology, the Court struck down New York’s proper-cause firearm licensing law which demanded a firearm license applicant prove a “special need for self-protection distinguishable from that of the general community”. The Court found this requirement to be unconstitutional because it contradicted the historical tradition of the Second Amendment by effectively preventing ordinary people from carrying a gun in public for self-defense. The following blog text delves more deeply into the dissenting opinion written by Justice Breyer, with whom Justices Sotomayor and Kagan joined, in which this liberal minority argues that the Court’s decision is based on multiple major mistakes.

Breyer begins the dissent by arguing that the Court shouldn’t take away the ability to tackle the dangers of gun violence from democratically elected bodies. He explains that problems caused by firearms vary geographically and demographically and it takes local knowledge to find the best regulatory measures to combat these issues. To highlight the issues of unregulated guns, Breyer points out the disproportionately high gun ownership and gun violence rates in the US compared with the rest of the world.

Breyer then moves on to criticize Court for deciding the case based on pleadings without allowing for discovery or the development of an evidentiary record on the relevant facts of the case. Pleadings, such as briefs of the parties, tell nothing about how the New York’s law is applied on the grass-roots level. Therefore, the Court’s characterization of New York’s law as one that effectively prevents people from carrying guns in public for self-defense is based on insufficient evidence, claims Breyer. Moreover, Breyer chastises the Court for depriving New York of the chance to prove that its licensing scheme is consistent with the historical tradition of the Second Amendment. However, clearly in order not to undermine his own arguments, Breyer speaks nothing of an oral argument that the Court organized to form its view on the New York law.

In his next point of contention Breyer proceeds to harshly criticize the Court for not employing a so-called two-step test to determine the constitutionality of New York’s law. In this test a court will first find whether the regulated activity falls within the scope of the Second Amendment as informed by its text in the historical context. If yes, the court would then apply means-end scrutiny to weight between the governmental interests of the regulation and the individual rights at stake, and in this way decide if the regulation is justified. In Bruen, however, the Court rejects the means-end scrutiny part of this two-step test and instead requires the government to prove that its law is consistent with the Nation’s historical tradition of firearm regulation. 

Breyer notes that the two-step test has not only been used by lower courts in Second Amendment cases but also by the Supreme Court in cases regarding other constitutional rights and this new history-only approach is therefore incomprehensible. Moreover, rejecting means-end scrutiny in Second Amendment matters is unfaithful to District of Columbia v. Heller, 554 U. S. 570 (2008) continues Breyer. In Heller the Court did reject a freestanding interest-balancing approach but explicitly contemplated traditional forms of means-end scrutiny in the Second Amendment context, such as strict or intermediate scrutiny. Breyer thinks that the New York law would have passed this kind of means-end scrutiny with ease. Lastly, Breyer challenges the practicality of this new history-only test since history may not be able to give answers to modern problems and lower courts don’t even have the resources to conduct such extensive historical analysis.

In the final section of his dissent, Breyer tries to prove that even in the eyes of this history-only test the New York law should be held constitutional. He conducts his own analysis of historical firearm regulations and finds plenty of legislation similar to the New York law. This history was, nonetheless, disregarded by the Court in its deliberations because, as Breyer puts it, the Court always found some arbitrary reason to discount the force of this historical evidence. Breyer seems to be rightfully puzzled as to what evidence is then needed to prove a regulation’s historical tradition if all these historical analogies that he found weren’t enough. Although Breyer’s historical analysis may not have had any effect on the Court’s judgement, if nothing else Breyer manages to highlight how unreliable and indecisive this history-only approach is.

Regardless of the correct methodological approach and true historical meaning of the Second Amendment, this case does well to demonstrate how much the political backgrounds of justices affect their views. The conservative majority and the liberal minority are deeply holed up in their ideological trenches and especially in this case they seem to disagree on pretty much everything. It is thus likely that this pro-gun rights and anti-regulation trend of the Court will continue for as long as the conservative majority prevails.

T. A. M. V.