I read the whole thing. All 213 pages of it. Well, almost all of it. I still have not read all of the footnotes and appendices, and probably never will this side of the Elysian Fields. I guess I do have something of a life, such as it is.
I am speaking of Dobbs v. Jackson Women’s Health Organization, 597 U. S. ____ (2022), the recent Supreme Court decision that overturned a half-century old constitutional right first enshrined in Roe v. Wade (1973).
I will not set forth any personal opinions in this blog. I sincerely wish to avoid even inadvertently sidestepping into any controversy. The topic is one that engenders passion on both sides of the issue, with equally sincere and zealous advocates working tirelessly to advance their respective positions.
With that backdrop, what could possibly go wrong if I blog about the decision? I mean besides everything, of course. So, I will attempt to tread gingerly and with the greatest of care as I tiptoe through the tulips of this potential public opinion minefield.
The case I will analyze in this blog is obviously one that involves an issue of heightened concern for women. They are far more familiar with the immediate impact of these types of decisions that need to be made with respect to their personal lives than I could ever hope to be. So, in this blog I simply seek to understand the Court’s methodology in making these kinds of sensitive and impactful decisions.
So here goes.
As has been known for weeks now due to an unfortunate leak of the draft decision, Justice Samuel Alito penned the opinion for the majority.
From my experience reading his decisions, I feel that Justice Alito has a pleasant writing style that is scholarly but not too pedantic, vigorous but not too aggressive. Though he clearly has strong convictions about the subject matter at hand, his style somehow manages to avoid being off-putting, although one would be hard pressed to call it gentle. Forceful yet restrained elegance is my best attempt to describe his legal literary style. His pen was probably the right instrument for the majority opinion on this issue. It is therefore easy for me to see why he was chosen for this difficult task.
Mississippi enacted a law making it a crime to intentionally or knowingly perform or induce an abortion except in an emergency or in the case of fetal abnormality.
An abortion clinic and one of its doctors challenged this law in federal district court, claiming that it violated Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey (1990).
The federal district court permanently enjoined enforcement of the Act on the grounds that Supreme Court cases prohibited bans on pre-viability abortions. Mississippi appealed. The Fifth Circuit Court of Appeals affirmed.
Mississippi appealed to the Supreme Court, setting forth their reasons why the Court should hear the case, but holding their cards close to their vest regarding their goal of tossing Roe v. Wade out the back of a fast-moving caboose.
The stage was now set for a constitutional showdown. The Supreme Court gamely snatched up the gauntlet. The crowd waited in breathless anticipation …
And then someone leaked the draft opinion. I mean, c’mon people, can we at least agree to follow some Marquess of Queensberry rules here?
Ahem … now, back to the narrative.
The Court noted that Casey had upheld Roe v. Wade based on the doctrine of stare decisis. Stare decisis is a Latin term meaning “to stand by things decided.” This is a legal doctrine that favors generally adhering to precedent for the sake of stability, predictability, objectivity and the appearance of objectivity, and respect for reliance interests created by legal precedent
But, as the Court itself has stated, stare decisis is not an inexorable command. For Justice Alito and the Dobbs majority, the Casey decision had wrongly applied stare decisis when it upheld Roe v. Wade without really analyzing the underlying strength of its core premise, which is whether or not the Constitution confers a right to an abortion.
The text of the Constitution itself does not mention abortion. But the 1973 Roe court had found the right to be an integral element of the broader right of privacy springing from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Casey, in upholding Roe nearly twenty years later, did not follow suit in its reasoning. In upholding Roe’s core holding, Casey found the right to an abortion to be part of the liberty interest protected by the Fourteenth Amendment’s Due Process clause.
Casey framed the abortion right as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.”
Casey paid great respect to the principle of stare decisis. The authors of the Casey opinion hinted that there were some justices who, if they had been members of the Roe court at the time, might not have decided that case the same way.
But for the sake of stability and continuity, and out of deference to the long-standing interests of people who had planned major life decisions in reliance on Roe, the court felt compelled to uphold that precedent. Failure to do so in their view would have resulted in a severe shock to the system.
But this was lackadaisical legal legerdemain in Justice Alito’s view. Casey’s fundamental flaw, he holds, was its failure to confront Roe’s tenuous reasoning head on. He also took issue with Casey’s failure to engage with what he perceived as Roe’s faulty understanding of history.
Alito explained the Court’s basic approach to recognizing freedoms that are not enumerated in the Constitution. For the Court to treat such freedoms as meriting constitutional protection, they must be “fundamental” liberties that are “deeply rooted in (our nation’s) history and traditions.” They must also be an essential component of our Nation’s scheme of “ordered liberty.” He emphasized that the Court has traditionally been “reluctant” to recognize rights that are not mentioned in the Constitution.
Under this framework, Justice Alito found that Roe had mistakenly recognized a right that was not deeply rooted in our nation’s history and tradition. Justice Alito’s research showed that post-quickening abortion was historically a crime in most states. One of the appendices I skipped over contained a comprehensive list of all the state statutes banning abortions.
Quickening is an abstruse concept that I do not pretend to fully understand. It apparently referred to the time in fetal development when a fetus began to show signs of movement, or incipient life. This was deemed a significant milepost in a pregnancy because it was the moment in time in which the potential of human life was beginning to manifest.
Alito opines that, instead of holding that abortion was a traditional historical right with a venerable pedigree, Roe and Casey had instead cast it as an integral part of a much broader array of entrenched rights, namely the right of privacy and the right to make intimate personal choices central to one’s own dignity and autonomy.
The concept of ordered liberty recognizes that there are limits and boundaries between competing interests. “Your right to swing your arms ends where my nose begins,” is the basic idea, although this playground idiom is unlikely to make it into a Supreme Court opinion.
Both Roe and Casey had recognized the competing interests of a woman seeking an abortion and a state seeking to protect “potential life.”
Roe had sought to balance those interests by laying out a detailed trimester scheme. Under this framework, the state’s ability to regulate abortions during the first trimester of a pregnancy was at its lowest ebb. By the third trimester, however, when the fetus had become more clearly viable (or able to thrive outside the womb), the woman’s right to an abortion became increasingly attenuated and subject to more regulations by the state.
Many commentators had criticized this regulatory scheme as seeming less like a set of flexible judicial guidelines and more like a complex web of hospital regulations.
Casey had abandoned the trimester scheme in favor of an “undue burden” standard to determine the validity of abortion regulations. Any state regulation that placed an undue burden on a woman’s right to choose an abortion was constitutionally invalid. So, state regulations such as waiting periods and parental consent requirements before a minor could have an abortion, were scrutinized with an eye to how much of a burden they imposed on the woman’s right to an abortion.
In deciding whether to adhere to the doctrine of stare decisis or to make the bold decision to overturn a troubling precedent, Justice Alito noted several factors the Court will look at.
The first factor is the nature of the Court’s error. Justice Alito likened Roe v. Wade to the 1896 case of Plessy v. Ferguson. Plessy, of course, was the infamous Supreme Court case that upheld the validity of Jim Crow laws under the mantra of “separate but equal.” This universally condemned decision led to another half century of legally sanctioned discrimination. The Court in Brown v. Board of Education had finally remedied this egregious error by holding that “separate is inherently unequal” and striking down Jim Crow laws.
In Justice Alito’s view, Roe was like Plessy in the sense that it committed a grievous legal error followed which created a train of undemocratic consequences. In his view, the effect of Roe was to take a profoundly controversial issue and remove it completely outside the reach of political or legislative resolution.
Justice Alito also likened Roe to the Court’s Lochner era, which is a forty-year line of cases beginning around the turn of the twentieth century that is generally considered to be an example of the Court overstepping its bounds.
Lochner v. New York, 198 U.S. 45 (1905) was a case in which the state of New York enacted a law setting maximum working hours for bakers. The Bakeshop Act made it a crime for bakeries in New York to employ bakers for more than 10 days a day, 6 days a week, or more than 60 hours a week. Joseph Lochner, a German immigrant who owned a bakery in Utica, New York, was convicted of violating the Act. He ultimately appealed his conviction to the Supreme Court.
A five Justice majority held that the Act violated the due process clause of the Fourteenth Amendment. The Court reasoned that the law was an unreasonable and arbitrary restriction on an individual’s freedom to contract.
Although Lochner was not actually the first of the Lochner era cases, it became the most notorious. Oliver Wendell Homes penned a famous dissenting opinion in the case.
The Lochner era Court continued to strike down economic legislation until well into the Progressive Era and during the Great Depression. In fact, The Lochner era effectively ended in 1937 when West Coast Hotel Co. v. Parish (1937) upheld the constitutionality of a Washington state minimum wage statute.
Justice Alito also mentioned the case of Minersville School District v. Gobitis (1940). The Minersville Court, in a clear violation of the First Amendment, ruled that public schools could compel students, in this case a Jehovah’s Witness student, to salute the American flag and recite the Pledge of Allegiance. But only three years later, in a whiplash-inducing turnaround no doubt inspired by buyer’s remorse, the Court overruled this decision in Virginia State Board of Education v. Barnette (1943).
These were some examples given by Justice Alito to demonstrate his position that egregious precedent can and should be overturned. And of course, he deemed Roe’s reasoning to be egregiously erroneous.
The second factor in deciding whether to overturn a case is the quality of the Court’s reasoning. Justice Alito weighed Roe’s reasoning in the balances and found it wanting. Roe had found support for an abortion right in a myriad of cases under the umbrella of what it termed privacy rights. But for Justice Alito and the majority, Roe conflated the right to shield information from disclosure with the right to make and implement important personal decisions free from government interference. According to Justice Alito and the majority, none of these cases touched on the distinctive nature of abortion; namely, its effect on what Roe termed “potential life.” This is an area Justice Alito said is best left to the competing interests of political advocates in each state working to forge legislative solutions.
The Casey court abandoned Roe’s grounding of an abortion right on the broader foundation of privacy rights, and instead found it to be one of the liberty interests protected by the Fourteenth Amendment’s Due Process clause. Casey also jettisoned Roe’s trimester scheme in favor of a nebulous “undue burden” standard.
For Alito, the Casey court had neglected the hard work of grappling with and correcting Roe’s flawed reasoning, and instead relied on a misguided application of the doctrine of stare decisis. Though he does not say it this way, one gets the distinct feeling that Justice Alito believes the Casey Court ultimately lacked the courage of its convictions and took the path of least resistance, punting on fourth down by making an effortless decision to uphold Roe despite all of its flaws in the naive but hopeful belief that everything would somehow just work out alright in the end.
But in Alito’s view, that game was just too close to be punting on fourth down. The Casey court had the ball on the other team’s forty-yard line with just enough time left on the clock to score, and a solid lineup of players out on the field. In that scenario, you go for a first down or a field goal. You might even go for the touchdown. But punt?!
The third factor the Court looks at is workability. Justice Alito is unsparing in his criticism of the “undue burden” standard set out in Casey. He says it has led to numerous Circuit Court conflicts. He notes that even the Casey court itself struggled to apply its own test in the very case in which it created the test. A workable precedent? Not in Justice Alito’s view.
The fourth factor is the effect of the decision on other areas of the law. Justice Alito and the majority describe ways in which Roe and Casey have affected other areas of the law, in their view almost always negatively. But a desire to see a Fourth of July fireworks show has cut short my ability to list these ways. However, please be assured they are in the decision for those diligent enough to search for them.
The fifth and final factor to consider is the extent to which the decision has created reliance interests. The majority opined that overruling Casey and Roe will not upend any traditional concrete reliance interests, such as those involving property and contract rights. And after all, Justice Alito noted, even the Casey court opined that traditional reliance interests were not implicated because getting an abortion was generally “unplanned activity” and “reproduction planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”
However, the Casey court had found a different kind of reliance interest, albeit a more intangible one. It found “that people [had] organized intimate relationships and made choices that define their views of themselves and their places in society … in reliance on the availability of abortion if contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
The majority found that such intangible interests that compete with other interests, such as a woman’s interest in an abortion versus a state’s interest in protecting potential life, are best left to the political and legislative processes for resolution.
The Court, having overturned Roe and Casey, then turned to the question of what standard of scrutiny should be used to decide whether state regulations on abortion are permissible or not.
The standard, says the Court, is rational basis scrutiny, which is the standard used to evaluate health and welfare laws. Such laws are given great deference and are upheld if there was a rational basis on which a state legislature could have thought they would serve legitimate state interests.
Applying this deferential standard, the Court found that Mississippi’s Gestational Age Act is supported by its Legislature’s specific findings, including its asserted interest in “protecting the life of the unborn.” The Court found this to be a rationally based legitimate interest and a sufficient basis to uphold the Act.
The Court recognized that abortion presents a profound moral question. In the Court’s view, the Constitution does not prevent the citizens of each state from deciding this question by regulating or banning abortions. The Court opined that Roe and Casey had arrogated that authority and that it is now returning that power to the people and their elected representatives.
The Court was careful to limit its holding to abortion rights. It stated explicitly that nothing in its opinion should be construed to denigrate other liberty interests and rights, such as the right to access contraceptives, or the recently recognized right to same sex marriage. The distinguishing factor between those rights and abortion for Justice Alito and the majority, is that abortion involves the issue of potential life in a way that those other rights do not.
Justice Kavanaugh penned a concurrence in which he agreed with the Court’s judgment but saw no need for the Court to go back any further than the year 1868 in determining the liberty interests protected by the Fourteenth Amendment. 1868 was the year in which the Fourteenth Amendment was ratified. He seemed a little uncomfortable with Justice Alito’s reciting history going back to the twelfth century.
Justice Thomas wrote a concurring opinion in which he agreed with the majority on almost everything. But he made clear he would throw out all the Court’s precedents on substantive due process, which he believes is an oxymoron and a misnomer. He would not have taken this drastic action in this case, however, but would have done so at the next conveniently opportunity.
Justice Thomas is always firmly rooted in the text of the Constitution itself, without allowing himself to engage in an expansive reading of it when he can help it
As a disciplined textualist, Justice Thomas is unlikely to see penumbras and emanations leaping from the page as he peruses the Constitution.
Substantive due process is a bit of a technical concept, but as I understand it, has been the Court’s vehicle for recognizing and protecting unenumerated rights. So, it seems to me that Justice Thomas does not agree with the majority’s assurance that this decision will not impact other substantive rights that do not involve potential human life.
Chief Justice Roberts concurred in the Court’s judgment but found its overruling of Roe and Casey a bridge too far. He felt a more measured approach would have been to have upheld the core ruling of Roe and Casey, but also to have upheld Mississippi’s ban on abortions after the fifteenth week of pregnancy.
The Chief Justice cited evidence to support the idea that almost all women find out they are pregnant by the fifteen-week mark. Therefore, banning abortion at that juncture did not place an undue burden on a woman’s right to choose an abortion. He saw no need to dismantle Roe and Casey “all the way down to the studs.” For him, if it was not necessary to decide an issue, then it was necessary not to decide that issue. Anything more or less than this cometh of evil, in his view. He foresees problems arising from the Court’s deciding more than what was presented to it.
Justice Breyer wrote the dissent, in which he characterized the Court’s decision as little more than an exercise of raw judicial power. In his view the Court overruled Roe and Casey primarily because it had the numbers to do so.
Unsurprisingly, Justice Breyer found Casey to be source of instructive wisdom on how to treat major precedents. It was a “precedent on precedents”, he opined. It seems clear that some of the Justices on the Casey court would have decided Roe differently if they had been on the Court at the time. These Justices were judicial heroes, in his book. They upheld precedent that they may not have agreed with in the first instance because they believed the national interest required it.
For Justice Breyer and the dissent, legal precedents often embody the accumulated wisdom of more than just one prior Court but oftentimes a succession of court moving in a particular direction as the ever-changing needs of society may dictate. So, approaching precedent with an appropriate attitude of humility and deference is an important aspect of judicial temperament.
Justice Breyer strongly believes that the majority opinion did not pay due respect to the reliance interests created by Roe and Casey. He felt the Court was too dismissive of these interests when it said they were not concrete and were too intangible to merit constitutional protection through the vehicle of stare decisis.
Justice Breyer included an appendix of his own to showcase examples of what was, in his view, the appropriate way to apply the doctrine of stare decisis.
Justice Breyer does not seem to buy into the notion that constitutional rights should be frozen at some fixed point in time, such as 1868 when the 14th Amendment was ratified. He seems to believe that the Founders themselves, of both the Constitution and the 14th Amendment, thought the documents they were creating were broad and flexible enough to accommodate the changing needs of a complex society who’s ever evolving needs they could not possibly have envisioned.
Ultimately, Justice Breyer, in writing for the dissent, expressed the view that women have made great strides over the years towards achieving economic, legal, occupational, and social equality. He believes this is in part due to the right to make important personal decisions such as those laid out in Roe and Casey.
For the dissent, the Court’s decision is a step backwards in the gradual forward March towards women’s equal rights to participate fully in the fabric of our national political, economic and social order.
Will we, as a society, step up and take care of the economically and socially disadvantaged among us who find themselves in a difficult unplanned pregnancy? Will we find ways to care for them and ensure that they have opportunities in life? Will we meet the challenges ahead of us to be a caring and compassionate society?
What do you think? I would be willing to bet you have an opinion.
This material should not be construed as legal advice for any particular fact situation but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.
