Dobbs excerpts: Why the U.S. Supreme Court said Roe v Wade was ‘egregiously wrong’

Kevin J. Jones   By Kevin J. Jones for CNA


Associate Justice Samuel J. Alito Jr. / Screenshot from YouTube video

Denver Newsroom, Jun 24, 2022 / 12:08 pm (CNA).

The Supreme Court has overturned Roe v. Wade, saying that previous abortion rulings were “egregiously wrong from the start” and on a “collision course with the Constitution.” Roe and other pro-abortion rights precedents were “an error that cannot be allowed to stand,” and the abortion debate must now return to the states.

The June 24 decision, authored by Justice Samuel Alito, concerned a 15-week abortion ban in Mississippi under the name Dobbs v. Jackson Women’s Health Organization. It often echoes a draft decision leaked in May that thoroughly rebuked the pro-abortion decisions Roe v. Wade and Planned Parenthood v. Casey, respectively issued in 1973 and 1992 by Republican-majority courts.

Alito’s decision was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Thomas and Kavanaugh also filed concurring opinions.

Chief Justice John Roberts filed an opinion concurring in the judgement, in which he advocated for a more narrow ruling. All justices who backed the decision were nominated by Republican presidents. However, the decision cites President John F. Kennedy appointee Justice Byron White’s dissent in the Roe decision.

The Dobbs case drew dissents from Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, all appointees of Democratic presidents.

Here are some key passages from Alito’s decision.

Mandatory legal abortion is overruled; the debate goes back to the states

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the decision says. “Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

It’s about human life: Abortion ‘fundamentally different’ than related court decisions

Abortion is “fundamentally different” from other decisions related to sexual relations, contraception, and marriage because it destroys what other court decisions call “fetal life” and what the Mississippi law in question describes as an “unborn human being.”

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.”

Roe v. Wade: ‘Egregiously wrong from the start’

The legal principle of stare decisis, which advises that precedent should usually stand, “does not compel unending adherence to Roe’s abuse of judicial authority.”

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” said Alito’s decision.

Women’s voices on abortion must be heard through legislatures and the ballot box

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so,” said the Dobbs decision.

The states have ‘legitimate interests’ in regulating abortion

The majority decision said, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”

“It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies’.”

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity” if there is “a rational basis on which the legislature could have thought that it would serve legitimate state interests.”

“These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability,” the decision explains.

Roe v. Wade was ‘on a collision course with the Constitution’ from day one

“Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”

“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people.”

“Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

“Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe…. Together, Roe and Casey represent an error that cannot be allowed to stand.”

Abortion precedents relied on bad history and bad reasoning

The right to abortion was “entirely unknown in American law” until the latter part of the 20th century, said Alito’s decision.

“Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”

“The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation…. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body… What Roe did not provide was any cogent justification for the lines it drew.”

“The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text… Roe, however, was remarkably loose in its treatment of the constitutional text.”

“Roe’s reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism,” said the decision. Among those it cites is Roe critic Laurence Tribe, a Harvard Law School professor emeritus who supports legal abortion.

Roe was a groundless novelty because many U.S. states banned abortion

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight,” said the Dobbs decision, before providing its own overview of the legal history of abortion.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

The Supreme Court can’t settle the abortion debate, but legislators may

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

“This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power’.”

This is a developing story.

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