By Dr. James J. Barney
Professor, Legal Studies
Note: This article is part 2 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.
Dobbs Exposes the Supreme Court’s Divisions over the Interpretation of the 14th Amendment’s Substantive Due Process Clause
The Constitution does not specifically mention abortion. Because the majority of Supreme Court Justices in Casey v. Planned Parenthood based their decision on a liberty interest deriving from the 14th Amendment’s due process clause, the majority of Justices in Dobbs focused their attention on whether the 14th Amendment’s reference to liberty created a right to an abortion.
The majority of Justices in Dobbs, strongly influenced by Justice Rehnquist’s dissent in Roe v. Wade, focused on whether the right to abortion was a deeply rooted right in American history. In examining this right, the Justices explored common law and the traditions of the United States.
In particular, the Justices focused on the state of the law regarding abortion at the time of the 14thAmendment’s ratification. According to the majority in Dobbs, the fact that most states had criminal laws that outlawed abortion at various stages of pregnancy was evidence that the framers of the 14th Amendment would not have viewed the term “liberty” as referring to the right to an abortion.
Because the majority of Justices found that the right to an abortion was not firmly rooted in American history, they found that the Mississippi law involved in Dobbs could survive review under the rational basis test. The law was rationally related to legitimate state interest, including the protection of the unborn at a certain gestational age.
The majority of Justices in Dobbs did not stop at their examination of Mississippi law. Rather, they made the decision to overturn both Roe v. Wade and Casey v. Planned Parenthood.
According to the Justices, both decisions were erroneous when the cases were decided in 1973 and 1992, respectively. Because they found that both cases were wrongly decided, the majority opinion held that these cases should not be viewed as precedent that should bind the Supreme Court’s decisions.
They also compared the cases with such notorious cases as Plessy v. Ferguson, which permitted legal segregation, and the Lochner-era cases that struck down various labor and employment laws. Moreover, the majority of Justices held that the public’s views on abortion or its reaction to its decisions were improper considerations in judicial decision-making that led the Supreme Court to engage in improper actions. The last comments were viewed as an attack on Chief Justice Roberts, who had emphasized how judicial decision are not made in a “vacuum” in both the Supreme Court’s decisions and his public statements.
It is highly significant that Chief Justice Roberts did not join in the majority’s decision to overturn Roe v. Wade and Casey v. Planned Parenthood. While he agreed to reverse the lower courts’ opinions, Chief Justice Roberts stated that resolving the appeal did not require revisiting Roe v. Wade and Casey v. Planned Parenthood.
In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor criticized the majority for looking at the state of the law in the 1860s. Rather than looking to the interpretation of the term “liberty” in the 1860s or the understanding of that term at the time of the 14th Amendment’s ratification, the dissenters argued that modern women had their lives in order and have relied upon the right to abortion and other reproductive rights since the 1970s.
According to the dissenters, the 14th Amendment’s use of the term “liberty” protects state inference in the most private and intimate affairs of life, including matters dealing with reproduction. Breyer, Kagan and Sotomayor also noted that the writers of the 14th Amendment’s views on the right to an abortion as not falling within the scope of the term liberty should not govern the modern interpretation of the term. Clearly, the majority and the minority opinions had vastly different interpretations of the term liberty in the 14th Amendment.
In a concurring opinion, Justice Clarence Thomas, the sole Justice who does not believe that the 14th Amendment contains substantive due process protections, noted that other cases that relied upon a liberty interest deriving from substantive due process of the 14th Amendment also require re-examination. Legal scholars viewed this in dicta statement as an attack on Obergefell v. Hodges.
Obergefell held that same-sex couples had a fundamental right to marry, which derived partly from the 14th Amendment’s substantive due process clause. However, it should be noted that the majority in Dobbs noted that it did not embrace Justice Thomas’s line of reasoning as the majority limited its analysis to abortion law.
The Possible Legal and Political Effects of the Dobbs Decision
The Dobbs case has sparked much controversy regarding the state of abortion law and the legal and political consequences of the decision.
By concluding that the right to an abortion did not derive from the Constitution, the Supreme Court’s final decision did not end the legal fighting over abortion. Instead, the Dobbs decision merely moved the location of abortion litigation from federal courts to state courts.
These state courts will interpret the state laws enacted before Dobbs. In addition, these state courts will have to examine the collection of laws that state legislatures will likely pass in the aftermath of Dobbs to determine whether they are in accordance with state constitutional law.
Since the issuance of the Dobbs decision, legal scholars and political commentators have discussed various legislative proposals. For example, there has been much talk of creating a right to abortion via federal law by Congressional legislation. However, such a proposal may face political and constitutional obstacles.
Currently, there are not enough votes in the House or Senate to pass such legislation. Even if such legislation were to pass, the current Supreme Court majority may conclude that such legislation improperly encroached upon the power of the states.
Some commentators like CNN legal analyst Joan Biskupic have viewed the decision by the majority as a repudiation of not only Chief Justice Roberts’s leadership of the Court but also his judicial decision-making that considers the impact of decisions on the public’s perception of the legitimacy of the Court.
According to Biskupic’s commentary, the Supreme Court’s decision in Dobbs may indicate that Chief Justice Roberts has lost influence over his colleagues. While such an assessment may be premature, both ideological wings of the Supreme Court in Dobbs seemed to have lost patience with Chief Justice Roberts’ attempts at a form of judicial decision-making that seeks compromises, factors in the public’s view on decisions, public opinion, and judicial consensus on controversial issues.
The majority opinion in Dobbs contained language directly attacked Roberts’ considerations as improper. It may be an indicator that Chief Justice Roberts potentially faces increased isolation and hints that his role as the Supreme Court’s influential swing vote in the post-Kennedy years was short-lived. In the future, it will be necessary for Supreme Court watchers to monitor the Court’s decisions to assess whether Dobbs represents an aberration or the beginning of a trend.
While the media has depicted the Dobbs decision as a triumph for the pro-life movement, a close reading of the majority opinion reveals that the majority did not opine on the mortality of abortion, recognize a fetus as a person under the law, or declare that the states could not allow abortions after a certain gestational age. All of these concepts are long-standing aspirations for many people in the pro-life movement. Instead, the majority in Dobbs focused on whether the Supreme Court in Roe v. Wade and Casey v. Planned Parenthood erred when they held that the Constitution conferred a federal right to an abortion.
Pro-life advocates have celebrated the Dobbs decision as a victory after 50 years of advocacy. This victory may prove a Pyrrhic one because it relied upon only one vote. Also, the Supreme Court’s decision in this case may spark a series of long-term unintended consequences, including federal legislation that may limit the jurisdiction of the Supreme Court and other federal courts or reignite the debate over the Court’s size.
While these outcomes are unlikely in the near future, memories of the Dobbs decision will animate the Democratic electorate and politicians for a generation. Also, states with Democratic majorities will likely create abortion protections via state law, providing more robust protections for abortion in some states. These state laws will allow millions of women to have relatively easy access to abortions.
Dobbs Revealed Other Divisions in the Supreme Court
The Dobbs decision also reveals a Supreme Court divided sharply on not only the interpretation of the 14th Amendment but also judicial interpretation, the relationship between state and federal government, and the role of the Supreme Court. A wide degree of dispute on these fundamental issues creates a potentially dangerous situation.
The Supreme Court’s division on some of the most fundamental questions of constitutional law may reinforce a notion commonly held among the public that the Justices are merely political actors whose decisions are the product of their political allegiances or ideologies. This belief could further undermine the legitimacy of the Supreme Court.
Chief Justice Roberts prudently warned about how bolstering the legitimacy of the Supreme Court in a hyper-politicized era was critical for the Court’s long-term survival as an “honest broker.” The majority of Justices in Dobbs, however, dismissed these warnings.
The majority of Justices in Dobbs noted that they do not care what the public thought about the Court or its decisions, because such matters were irrelevant to constitutional interpretation. Despite this bluster, the Supreme Court needs the public and both sides of the political spectrum to believe that it is an honest and fair arbitrator of disputes, so that the Suprme can exercise the power of judicial review without accusations of political bias.
Dobbs is a highly unpopular decision among a significant percentage of the U.S. population. The Supreme Court’s history indicates that unpopular judicial decisions have long-term consequences, foreseeable and unforeseeable, for the Supreme Court’s place in the political and legal system of the United States.
In the aftermath of Dobbs, respectable legal scholars such as Professor Jeremy Waldron from New York University in “Renouncing Dobbs and Opposing Judicial Review” have argued that ordinary people via the electoral process are now the only guardians of civil rights. Waldron observed that the Supreme Court has now demonstrated its unreliability to safeguard constitutional rights.
Such commentary reflects a growing sense among legal scholars that the fight over what constitutes constitutional rights will move from the federal courts to the ballot box, a result that the majority in Dobbs seemed to encourage. Only time will tell how future electoral battles over constitutional rights will play out, as well as their impacts on U.S. constitutional law and the lives of ordinary men and women.