By Dr. James J. Barney
Professor, Legal Studies
Note: This article is part 1 in a two-part series about Dobbs v. Jackson Women’s Health Organization and how the Supreme Court arrived at its decision in this case, which overturned Roe v. Wade and Casey v. Planned Parenthood.
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court granted a writ of certiorari. The intent behind this request was to examine the constitutionality of a Mississippi law, called the Gestational Age Act, that made it unlawful, except “in a medical emergency or in the case of a severe fetal abnormality,” to perform or induce an abortion after “the gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
Rather than merely examining the constitutionality of the Mississippi law in question, five Justices – Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch – decided to revisit the constitutionality of abortions in Dobbs v. Jackson Women’s Health Organization. Ultimately, the Supreme Court’s decision in Dobbs overturned the decisions in two important cases, Roe v. Wade and Casey v. Planned Parenthood.
In overturning both Roe v. Wade and Casey v. Planned Parenthood, the five Justices in the majority opinion held that the Constitution does not confer a right to an abortion. In addition, those Justices said that state legislatures, rather than jurists, should decide the status of abortion.
The Supreme Court’s decision in Dobbs upended almost 50 years of Supreme Court abortion jurisprudence. This decision may also mark the end of Chief Justice John Roberts’s short-lived role as the critical swing vote, a role he assumed after Justice Anthony Kennedy’s retirement in 2018.
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The Police Power of States and Abortion
Before Roe v. Wade, there was a general consensus in the legal community that individual states could regulate and criminalize abortion. According to the legal consensus in the pre-Roe v. Wade era, the states possessed a police power that enabled them to regulate behavior and enforce order within their territory to promote the “betterment of the health, safety, moral, and general welfare of their inhabitants.”
The police power of the states derived from the Constitution’s system of federalism that granted the federal government limited power, while reserving all powers not delegated to the federal government to the states via the 10th Amendment. Given the widespread consensus regarding the power of the states to regulate abortion, states in the pre-Roe v. Wade era passed a collection of laws that criminalized various abortion practices and created regulatory schemes.
These laws, often advocated by the medical profession, had the intent to protect women’s health and welfare. Abortion in the era before antibiotics and an understanding of germ theory was a potentially dangerous procedure.
In the immediate years before Roe v. Wade, there was an attempt to liberalize abortion laws and create a collection of exceptions to the criminalization of abortion. For example, state laws in the pre-Roe v. Wade era permitted abortions when such a practice was necessary to protect the “health” of the mother, giving rise to a debate over the meaning of the term “health.”
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Roe v. Wade Created a Federal Right Based on Privacy
In Roe v. Wade, the Supreme Court reviewed a Texas law that allowed for abortion when the procedure sought to protect the “health” of the mother. The plaintiffs in Roe included not only Roe, an unmarried woman who wanted to obtain an abortion for an unwanted pregnancy, but also a doctor and a married couple.
The doctor, previously charged with conducting unlawful abortions, argued that the Texas law’s use of the term “health of the mother” phrase was vague. In contrast, the married couple wanted the courts to declare that they had the right to get an abortion for a possible unwanted pregnancy in the future.
The majority in Roe v. Wade concluded that the married couple did not have the standing or the ability to challenge the Texas statute. The majority also held that the unmarried couple’s request for a declaratory judgment (a legal determination of rights) that they had a right to a future abortion was too speculative. The majority in Roe v. Wade, therefore, focused on the claims of the doctor and the unwed mother who wanted to terminate her pregnancy.
In 1973, seven Justices in Roe v. Wade held that women had a right to privacy in their medical decisions, including deciding whether to terminate a pregnancy, especially during the first trimester. Regulations on abortion during the first trimester had to pass a high standard of review as state laws regulating abortion potentially infringed upon the rights of a patient and doctor to make medical decisions.
At the same time, the Supreme Court during the Roe v. Wade era recognized that states had a strong interest in regulating abortion throughout pregnancy, but that the state’s interest was especially strong in the later stages. Given the state’s interests, states could limit the right to an abortion during these later stages. As a result, the Supreme Court established different standards of review in Roe v. Wade for examining state regulations during three distinct stages of pregnancy, often referred to as the trimester standard.
In dissent, Justice William Rehnquist in Roe v. Wade strongly criticized the majority’s reasoning. Rehnquist argued that the majority based its decision on erroneous legal analysis, including applying the wrong standard of review when reviewing the constitutionality of state laws dealing with social and economic regulations, including criminal laws dealing with abortion.
According to Justice Rehnquist, laws dealing with abortion, even those laws that regulated or criminalized abortion, could survive if there was a rational relation between the state’s law and a valid state objective like protecting the health and safety of women. The majority in Roe v. Wade, in the view of Justice Rehnquist, erred because they discounted the stated reasons in the Texas law and, in doing so, created a new federal right to an abortion in the initial stages of a pregnancy that was unwedded to the Constitution’s text or common law. He also focused on how the existence of laws regulating and criminalizing abortion reflected a widespread consensus, both in the 1860s and in the 1970 , that U.S. states could regulate and criminalize abortion.
After Roe v. Wade, both lawyers and judges struggled with applying Roe v. Wade’s trimester standard of review. States across the U.S. passed a series of laws to regulate abortion at various stages of pregnancy and imposed new requirements on abortion, including parental and spousal notification laws and waiting periods prior to an abortion.
Casey v. Planned Parenthood Focused on the 14th Amendment and Created a New Standard
In Casey v. Planned Parenthood, a 1992 case that reviewed a series of Pennsylvania laws, including notice spousal and parental notification requirements, set aside Roe v. Wade’s trimester standard of review. However, the Supreme Court’s decision in Casey v. Planned Parenthood was not a majority decision.
Instead, most of the Justices decided that in the period before the viability of a fetus, states could not impose an “undue burden” on the right to an abortion. They also held that laws enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” violated the substantive due process clause of the 14th Amendment.
So while a plurality of Justices in Casey v. Planned Parenthood held that women had a right to an abortion in the period before the period of a fetus’s viability, they found that that right was derived from a different constitutional source. The case also established a completely new standard of review for states dealing with abortion during the pre-viability stage of pregnancy. Despite the popular notion that Roe v. Wade was firmly established law, the majority of Justices in Casey largely rejected the reasoning that formed the legal basis for the decision in Roe v. Wade.
The Death of Justice Ginsburg Had a Tremendous Impact on the Supreme Court
From 1992 to the retirement of Justice Anthony Kennedy in 2018, there were at least five Justices whom legal scholars predicted would vote to affirm the central core of Roe v. Wade. These Justices were likely to support the concept that a woman had a right to an abortion during the pre-vitality stages of pregnancy.
During the Trump administration, however, legislatures in several states passed laws that sought to test the limits of Casey. In a 2019 op-ed I wrote after Justice Kennedy’s retirement in 2018, I predicted that one such challenge to Roe v. Wade in Alabama would fail.
I believed that Justice Roberts, the existing swing vote at the time, would find a compromise between the two warring camps. I reached this opinion based on a review of the decisions issued in the year after the confirmation of Justice Kavanaugh, Justice Kennedy’s replacement. These decisions strongly indicated that Chief Justice Roberts did not want to issue controversial opinions, including on issues such as abortion, which would thrust the Supreme Court into the public debate.
As Linda Greenhouse noted in her book, “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court,” the death of Justice Ginsburg in 2020 and the confirmation of Justice Coney Barrett the same year radically changed the composition of the Supreme Court.
Justice Ginsburg viewed abortion as a fundamental right springing from the 14th Amendment’s reference to liberty. In fact, Justice Ginsburg criticized Roe v. Wade‘s analysis because she believed that the majority in Roe v. Wade largely based their decision on a patient/physician relationship, rather than on focusing on the right springing from the 14th Amendment.
Justice Ginsburg’s replacement, Justice Amy Coney Barrett, did not share Ginsburg’s views on many topics. The Dobbs case represented the first opportunity to assess Justice Coney Barrett’s views on laws dealing with abortion.
After Justice Coney Barrett’s confirmation, legal scholars such as Mary Ziegler in “Abortion and the Law in America: Roe v. Wade to the Present” predicted that the Supreme Court would take the opportunity to overturn Roe v. Wade. However, Supreme Court in Dobbs did not grant the writ of certiorari on the constitutionality of that case or Casey v. Planned Parenthood. The writ stated that it sought to explore the constitutionality of a Mississippi law that prohibited abortions after 15 weeks.
Part 2 of this series will discuss how Dobbs has exposed Supreme Court divisions and the possible legal and political effects of the Dobbs decision.
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