The Dobbs v. Jackson Women’s Health decision 597 US – (2022)
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Justice Alito writing for a 5-4 majority overrules 50 years of precedent in Roe v. Wade and Casey v. Planned Parenthood which guaranteed a woman’s right to choose. His analysis is that Roe and Casey were egregiously wrong, and individual states should have the right to tell any and every pregnant woman residing in their state that she must bear a fetus to term. He says that his opinion should not be read as imperiling any of the other “right to privacy” cases such as contraception, same sex marriage, forced sterilization, mixed race marriages, etc. His repeatedly stated view, writing for the court’s majority, is that this decision should be left to a state’s voters and their elected representatives to be able to tell a woman she must bear a child, but he omits any mention of the partisan gerrymandering techniques and voter suppression mechanisms the Court has so recently approved. He grounds his analysis in the fact that the word abortion does not appear in the text of the constitution and that at the time the 14th Amendment was adopted, many states had laws on their books prohibiting abortion. He overlooks the failure to mention women at all in the 14th Amendment or the original Constitution as they were not explicitly recognized as having the right to vote until the 19th Amendment.
Justice Thomas in his concurrence wrote that all the cases decided under the court’s privacy and liberty decisions should be revisited, reconsidered and overruled. In his view the 14th Amendment only protects individual rights to notice and a hearing before you lose life, liberty or property to the government – i.e. procedural due process. He would nullify the court’s decisions based on substantive due process – in other words he thinks that most of the individual liberties cases were wrongly decided. He is explicit in saying the line of Supreme Court cases allowing contraception, rights of gay men and women to engage in intercourse and get married should be reconsidered and overruled.
Justice Kavanagh warns that states in their zeal to prohibit abortions cannot impair an individual’s rights to interstate travel; for example a Texas or Mississippi or Oklahoma pregnant resident who chooses to seek an abortion in California, cannot be denied that right (if she can afford the travel and the cost of the procedure).
Chief Justice Roberts concurred in the court’s result allowing Mississippi’s 15 week abortion ban, but not the court’s decision in overruling Roe v. Wade’s rights to seek an abortion. His reasoning is that 15 weeks is an adequate time frame for a woman to know that she is pregnant and to secure an early term abortion. He points out that many other nations use the 15 week rule that Mississippi adopted. He would uphold Roe and Casey insofar as they establish a woman’s right to choose to seek an abortion but overrule their precedents in setting time frames for determining fetal viability. After criticizing the earlier decisions for setting time frames, he then proposes 15 weeks as opposed to six months.
Justice Breyer writing for the three dissenting justices points out there is no justification for the majority’s overruling 50 years of precedent on which women, their spouses, their children and their families have relied and built their lives. Secondly, he demolishes Justice Alito’s historical analysis pointing out that when the Constitution was adopted and later when the 14th amendment was adopted that women were considered their husband’s chattel, had few or no rights at all, including the right to vote (not established until 1919). Does Alito think that all the modern court cases under the 14th Amendment establishing women’s rights were wrongly decided? Justice Breyer points out that the majority ignores the vast changes in women’s roles and society over the last 250 years, and the critical role played by reproductive rights in supporting women in today’s world. He also discusses the lack of much if any government support for pregnant women, for childbearing, for child rearing, and for family supports in those states like Mississippi and Texas that have lead the charge to overturn Roe v. Wade. Finally, Justice Breyer contrasts the steady progress in recognizing reproductive rights throughout the world from Ireland to Colombia at the very same time that states like Mississippi, Texas and Oklahoma are trying to repeal and roll back women and families’ reproductive rights at a breakneck pace.
This is state authoritarianism at its absolute worst dictating the reproductive lives of women and children. Our best and indeed our only remedy immediately at hand is to vote out those state and federal legislators who have lead us to this disastrous state of affairs for our nation’s women and families. It will most deeply impact poor women and their families who cannot afford the costs to travel to the remaining safe havens. We must support the legislators, state Governors and non profit organizations still dedicated and fighting to protect a woman’s reproductive rights. We will prevail if we commit our time and resources to the tasks at hand.
We must recognize that the Supreme Court is increasingly becoming the policy arm of the GOP; respect for it is plummeting as it steadily inserts its political preferences in place of sound constitutional principles and respect for precedent. We need to learn the hard lessons not to rely upon it to protect the rights and liberties of all Americans. This is a painful truth to swallow for those of us as lawyers with vantage points from the court’s decisions in the 50’s, 60’s and 70’s where the Justices of the Supreme Court played such a positive role in the nation.