By Linda C. Ashar, J.D.
Faculty Member, Dr. Wallace E. Boston School of Business
According to breaking news on May 2, 2022, the U.S. Supreme Court is set to completely overrule Roe v. Wade. This 1973 landmark case recognized a woman’s constitutional right to privacy to choose whether to have an abortion without government interference in that decision.
A document leaked to Politico purported to be a working first draft of the Court’s decision in Dobbs v. Jackson Women’s Health Organization. Following Politico’s publication of the draft, Chief Justice John G. Roberts, Jr. confirmed its authenticity. How the Court will proceed to finalize this opinion is an open question, but it is unlikely to change much.
US States Have Sought to Find Ways Around Roe v. Wade for Several Decades
In the decades since Roe v. Wade, state governments have labored with limited success to find ways around the Supreme Court’s decision. For instance, in the case of Planned Parenthood v. Casey in 1992, the Supreme Court considered Pennsylvania’s requirements of informed consent, 24-hour waiting period, the notification of at least one parent by a minor seeking an abortion, and the notification of a husband by a married woman seeking an abortion.
Ultimately, the Supreme Court reaffirmed Roe v. Wade with a modification. In Casey, the Supreme Court devised a standard for assessing a state abortion limitation.
Under the Casey standard, the legal question was whether a state law imposed a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Thus, the Casey decision replaced Roe’s trimester approach with fetal viability, the point where a fetus can survive outside the womb. Applying this standard in Casey, only Pennsylvania’s requirement to notify the husband was overruled as an undue burden.
Although the legal standard defined in Casey allowed U.S. states some limited room to legislate abortion, Roe v. Wade’s constitutional grounding of a woman’s privacy right to choose remained intact. With Casey, the Court sought to put the abortion debate to rest, but the issue continued to be politicized.
New Appointees Have Made the Supreme Court More Conservative in Recent Decades
The temper of the Court itself in the Casey decision augured the ongoing controversy. The Court’s composition had shifted to a more conservative bench in years following Roe with the addition of Republican appointees by Presidents Ronald Reagan and George H. W. Bush. Reportedly, initial deliberations in Casey indicated a vote to overturn Roe with Justice Harry Blackmun, architect of Roe v. Wade, the lone dissenter. Justices Sandra Day O’Connor, Anthony Kennedy and David Souter ultimately decided to change ground, co-writing the final plurality decision.
This opinion represented a judicial compromise “that walked a fine line and made clear that although some justices might be personally opposed to abortion, they would respect the Court’s prior ruling [in Roe v. Wade].” Justice John Paul Stevens joined in part of the opinion. Justice Harry Blackmun concurred in the Court’s judgment but dissented to modification of the standard of Roe v. Wade. Chief Justice William Rehnquist and Justices Antonin Scalia, Byron White, and Clarence Thomas joined each other in dissenting opinions, declaring that there was no constitutional right to an abortion, that it was a state legislative, not a judicial matter, and that Roe should be overruled.
The Court’s coalition might have intended to resolve the abortion controversy, at least in law, but instead Casey threatened the unraveling of constitutional protection for women in the courts. Public agitation against Roe and Casey further escalated with the Trump administration. Over time, more state governments introduced anti-abortion measures in concert with Trump’s appointment of three conservative Justices to the Supreme Court.
One such law directly challenging Roe v. Wade is Mississippi’s statute that outlaws abortions after 15 weeks of pregnancy, except in the case of a physician’s document that states that an abortion is “necessary to preserve the life or physical health of the maternal patient.” This statute has been blocked by lower courts as unconstitutional,pending the outcome of the Supreme Court’s review of Dobbs v. Jackson Women’s Health Organization. The leaked draft reveals the Court’s conclusion, in contrast to the lower courts.
How the Supreme Court Could Justify Overturning Roe v. Wade
Given the leaked draft decision in Dobbs, it is now apparent that the Supreme Court, which leans conservative on abortion rights, is leading a funeral parade for Roe v. Wade.
So how can the Supreme Court now justify tossing aside a constitutional right that it has recognized in two previous landmark decisions? According to the leaked draft, the Supreme Court will bow to perceived public opinion and abdicate judicial responsibility to a theory of states’ rights.
Justice Samuel Alito explains on page four of the draft decision: “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy.
“Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.”
The Supreme Court is supposed to act above and outside its perception of politics and current public opinion. The Constitution – with its imbedded principles of fundamental rights, individual liberty, equity and justice – is supposed to govern Supreme Court deliberations.
Overruling its own precedent is not done lightly by the Supreme Court for this reason, especially when constitutional rights are involved. Justice Alito acknowledges this issue on page 37 and argues at length that when the Court gets it wrong, it must take steps to repair its mistake, citing multiple cases where a precedent has been overruled.
Justice Alito declares that Roe v. Wade was always on a “collision course” with the Constitution because the right to privacy is not clearly stated within the Constitution. Here, the Court’s previous finding of such a right is obliterated by the interest of the collective citizenry of a given state to determine by majority rule what that right should be.
In other words, Justice Alito is saying that it is not a pregnant woman’s right to decide whether to have an abortion. Instead, it is the right of the majority of the people of the state where that woman resides. This means a right previously found within the essence of the Constitution has now been relegated to a moving target defined by public opinion.
Justice Alito’s draft opinion upholding Mississippi’s statute is not a surprise. The Court’s position is predictable, considering its recent decision in Women’s Whole Health v. Jackson. The petitioners in this case challenged Texas’ much-publicized ban of abortions after six weeks, which includes a web of enforcement mechanisms, such as rewards to third parties for reporting abortions.
The Court declined to interfere with the Texas scheme on procedural grounds and sent it back to the lower courts and the state Supreme Court. Deferring to the state is consistent with the apparent bottom line of the Dobbs leaked opinion, with the added clout of now expressly killing Roe v. Wade and the constitutional right of privacy in the process.
The leaking of the Court document is an unusual event. Chief Justice John G. Roberts, Jr. has described it as “a singular and egregious breach” of trust. One can only speculate as to how and why this leak has occurred, but it is not a stretch to imagine a deep rift exists in the Court over this case not unlike that faced in Casey.