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Chronicle of the Death of Roe Foretold

June 26, 2022


Reading the entire 213 pages of the Supreme Court decision on Dobbs v Jackson Women’s Center (the case that killed abortion rights by reversing the 1973 Roe v Wade) may seem like masochism for a non-lawyer like me, but for a case as momentous as this one, it seemed worth the effort. If nothing else, it shows clearly that on truly critical cases like this it’s not really about the law, but rather about political philosophy and power. The justices know where they’re going to come down, their opinions are merely the window-dressing–bits of argument and citations of precedents carefully selected to buttress the decision they’re already made. When you read the text, you realize that constitutional law is definitely not rocket science. You can understand it perfectly well. This is a long post, but stick with me. It’s important.

At least in this case, the opinions also reveal a lot about the inner dynamics of the Court and how each justice wants to present him- or herself to the American public, or at least that segment of it that cares about such things. More revealing than the majority opinion or even the dissents, are the concurrences where justices add further thoughts about the matter in question. This case has all of that in spades.

Boiling it all down isn’t easy, but here goes:

The Majority.  The ruling opinion written by Samuel Alito closely follows the draft that was leaked weeks ago, and is an extreme example of the “originalist” judicial philosophy championed by the late Justice Anton Scalia. This line of argument maintains that legal opinions must adhere to the thinking of the men (and they are almost always men) who wrote the Constitution and its amendments at the time they were written. It rejects the idea that our understanding or interpretations of the meaning of such documents can evolve over time to accommodate changing circumstances and knowledge. This school of thought is analogous to religious fundamentalism, which it frequently overlaps, and ascribes a virtually divine origin to the Constitution. Thus, unless something isn’t present in the actual language of the Constitution, it probably isn’t constitutional. 

Alito and his cohort baldly assert that Roe was “egregiously wrong” from the outset (even though five of the justices on the Court who voted for it in 1973 were Republican appointees) and that “Roe was on a collision course with the Constitution from the day it was decided.” The argument is essentially that abortion isn’t in the constitution and has been illegal throughout most of American history, that is, until Roe. Therefore it cannot be a right protected by the Constitution because it is not mentioned in that document or “deeply rooted” in tradition. There are pages of citations regarding the illegality of abortion in 1868, when the 14th Amendment was passed. This is important, he argues, because Roe held that  that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental “right to privacy”, which protects a pregnant woman’s right to an abortion. Alito insists that this is nonsense because the 14th Amendment doesn’t mention any “right to privacy” and anyway abortion was illegal in 1868. Therefore, the supposed right to have an abortion is simply made up and has no constitutional basis. 

He follows this with an extended discussion of the question of fetal viability, which Roe used to determine at what stage of pregnancy an abortion would be legally permissible. Basically, Roe divided a pregnancy into three trimesters. During the first trimester (weeks 1 -12), abortion was unrestricted by government intervention. During the second trimester, the state could regulate abortion regulate abortion if the regulations were reasonably related to the health of the pregnant woman. During the third trimester, the state could prohibit abortions unless an abortion was necessary to save the life or health of the woman. Thus the key point was that at which a fetus became “viable” or capable of surviving outside the womb. That question had been revised somewhat in 1992 in Planned Parenthood v Casey, in which the Supreme Court created a general standard based on fetal viability (understood to be around 28th week of pregnancy but not rigidly defined) while upholding the constitutionality of Roe. [Note: Dobbs also overturns Casey.] Alito attacks the very idea of such an “arbitrary line”, arguing that viability has changed with medical advances, and questions whether a State can even make such a judgment. This suggests that a state could set the dividing line at virtually any point in a pregnancy or not have one at all.

Alito notes that viability also depends on the quality of available medical facilities and then asks rhetorically, “On what ground could the constitutional status of a fetus depend on the pregnant woman’s location?” [Ironically, this is precisely the situation that the elimination of Roe has produced, i.e., without a national standard, states can and will apply different standards for when an abortion can be obtained or prohibit abortion at any stage.]

Next, Alito attacks the concept of “undue burden” which obstacles imposed by states would place on a woman seeking an abortion, claiming this is too ambiguous and therefore all but impossible to adjudicate.

Then he devotes a few paragraphs to the practical effects of overturning Roe (“reliance interests”), but airily concludes that those are impossible to determine “in any practical sense” and thus the whole question of abortion should be left to state legislatures. And besides, women have the right to vote and “are not without political or electoral power”.

Then, on page 74, Alito dismisses any concerns that this case could also impact other rights based on the Due Process Clause of the 14th Amendment–like contraception, gay sex, or gay marriage. Abortion is different, he declares, because it terminates a life or potential life, and thus is “inherently different from marital intimacy,” “marriage,” or “procreation”. “And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Trust us. 

Finally, Alito gets around to the sticky question of “stare decisis“, the legal doctrine that established laws should remain in effect absent some compelling reason to get rid of them. He notes that neither Roe nor Casey ended controversy over abortion. He doesn’t identify any cogent reason to overturn Roe other than the alleged deficiencies in its constitutional basis and that ” 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives.” After all, he asks piously, what if Plessy v Ferguson hadn’t been overturned by Brown v Board of Education? “We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

But wait, there’s more. Alito goes back yet again to the impact on Griswold, Eisenstadt, Lawrence, and Obergefell, i.e., those cases based on the Due Process Clause dealing with contraception, sex, and same-sex marriage. We already explained how those are different, he says, “and it is hard to see how we could be clearer.” But, he warns that can’t be turned around, because “a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by ‘appeals to a broader right to autonomy’.” Obviously, a sore point here (more on this below). 

Finally, he turns to the concurrences by the other justices, or more precisely one of the concurrences, that of Chief Justice Roberts. I’ll discuss that below, but here I just want to comment on the tone of Alito’s dismissal of Roberts’ argument, which is dripping with contempt. Alito writes, “The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach” and “would do exactly what
it criticizes Roe for doing: pulling ‘out of thin air’ a test that ‘[n]o party or amicus asked the Court to adopt’.” He ends: “In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.” In other words, the Court will end the controversy over abortion by making it a political issue in every state of the Union. The absurdity of this argument is stunning. 

Roberts may still be Chief Justice, but the radicals clearly have no respect for him. It’s not the Roberts Court any more. 

Clarence Thomas. The concurrence written by Thomas goes straight for the jugular. Yes, he writes, the Due Process Clause does not secure the right to abortion, because it does not secure any substantive right. The Dobbs decision doesn’t affect decisions like Griswold, Lawrence, and Obergefell, but that’s only because “no party has asked us to decide whether our entire Fourteenth Amendment jurisprudence must be preserved or revised”. He goes on: “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” …, we have a duty to ‘correct the error’ established in those precedents.” He continues: “After overruling [emphasis added] these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”

This is truly chilling. Thomas is saying that all of those cases should be overruled–he’s already decided that–and here he is openly soliciting cases that deal with those decisions so that can happen. There are a number of states that will be happy to oblige by generating cases to send forward to SCOTUS.

So, according to Thomas, those assurances in Alito’s opinion are nonsense and mean nothing. In previous concurrences and dissents, Thomas has openly stated his hostility to gay rights and same-sex marriage in particular. Now he seems to think he has a court that will let him take those away. He may well be right.

Kavanaugh. Brett Kavanaugh’s rather odd concurrence takes the Pontius Pilate approach, essentially washing his hands of the issue. According to him, the Constitution is completely neutral on the question of abortion, neither for nor against.  Therefore it’s up to “the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.” Roe was wrong because it took a side in favor of abortion, but he emphasizes that “the Court’s decision today does not outlaw abortion throughout the United States.” It’s up to Congress or the states to decide. 

He then goes into the stare decisis issue. “This Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests.” Based on that, he agrees that Roe should be overruled, but supplies nothing regarding meeting the second or third criteria–presumably he just accepts the “egregious” part. Then there’s a dutiful reference to the wrongness of Plessy v Ferguson, etc, etc...

On the Due Process issue, Kavanaugh simply repeats what Alito said: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Perhaps the justice doth protest too much. 

So what’s the point of Kavanaugh’s concurrence? To me, it looks like image repair. The message is: See, we’re not vindictive meanies! It’s simply not up to us, so go sort it out for yourselves. And don’t worry, we’re not going after the gays. Yet.

Roberts. The concurrence by Chief Justice Roberts is more interesting, but ultimately looks like wanting to have it both ways or, better yet, put off making any comprehensive ruling. Its point of departure is essentially a procedural question: Did the Court go way beyond what the case initially asked it to do?

Roberts tries to find some middle course that straddles the gap between the anti-abortion zealots and abortion rights defenders. “The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.” 

Ultimately, however, he goes along with the Alito majority opinion. Robert’s says the “viability test” should be discarded entirely as unworkable, but doesn’t say what should replace it. He argues that the Court didn’t have to completely eliminate the right to abortion afforded by Roe. Interestingly, he notes that Mississippi initially only asked the Court to “clarify whether abortion prohibitions before viability are always unconstitutional” and added that “the State made a number of strong arguments that the answer is no” which Roberts found “persuasive”. It was only after the Court agreec to review that case, that Mississippi “changed course” and in its principal brief argued for overturning Roe and Casey. Roberts then implicitly rebukes the Court for “rewarding that gambit” by accepting the revised basis for review when it didn’t have to. Instead, it should have adhered to the principle of “judicial restraint” rather than “overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” 

He goes on that the Court could have overruled a “subsidiary rule” (about viability) and allow “abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects. By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation.” 

Roberts states that “The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.” He then continues in that vein at some length.

But regardless of all that, Roberts concurs in the ruling anyway.

So what are we to make of this? The one thing that seems obvious is that the right-wing majority has the bit in its teeth and is no longer accepting guidance from Roberts, at least on core issues important to the Republican base. The radicals aren’t interested in compromise. Roberts now looks increasingly like an impotent figurehead, trying desperately to bridge an unbridgeable gap. But in the end, he goes along with the Jacobins. 

The Dissent by Breyer, Sotomayor, and Kagan. To read the vitriolic language in the Alito opinion, one might think that the defenders of Roe and Casey were helpless to produce any coherent rationale for either. However, the robust 65-page dissent proves otherwise. I would urge everyone to read it for yourself. 

Reading the majority opinion, I was struck by the utter lack of any consideration of the impact of this decision In Real Life–the “reliance interests” so cavalierly dismissed by Alito. (Indeed, this is a common aspect of virtually all the major decisions by the conservative majority in recent decades from Citizens United to the recent decision banning restrictions on carrying guns in public.) Their decisions reject such concerns as either unknowable or inconsequential, when in fact they are neither. The discussion is framed in terms of abstract principles and citations of precedents and other “authorities”, not the enormous and very predictable Real World implications. The logical conclusion is that their willful ignorance of such consequences means that the drafters of these rulings actually welcome the IRL consequences of their decisions. Indeed, those consequences are usually precisely what the Republican party wants.

The dissent in this case addresses at length the foreseeable damage and chaos that the decision will cause and its impact on currently and potentially pregnant women across the country. “Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services.” Of course, this is already happening. It continues: “Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the
views of [an individual State’s] citizens” will not matter…Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

The dissent then addresses the exact threat raised by Thomas’ concurrence: “And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception… In turn, those rights led, more recently, to rights of same-sex intimacy and marriage…They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.” In other words, the remaining liberals on the Court are agreeing with Thomas that cases like Griswold, Lawrence, and Obergefell are based on the same legal foundations as Roe. If Roe is invalid, why wouldn’t the others be threatened as well? As for the assurance that it’s only Roe that is affected, the dissent later points out the fragility of that claim, calling it “Scout’s honor”. 

The dissent points out that “The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’…[but] The same could be said…of most of the rights the majority claims it is not tampering with…So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” 

It then addresses stare decisis: “The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. Indeed, the Court in Casey already found all of that to be true. Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted. The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” The dissent returns to this point later, after a long and detailed discussion of the Constitutional basis of Roe and other rights deriving from the Due Process Clause, observing: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

The rest of the dissent is a point-by-point rebuttal to the majority’s arguments, including casting ridicule on Kavanaugh’s blithe declaration that the Court is neutral on abortion. I won’t go into more detail here, but I find the dissenters’ argument compelling.

Finally, the dissent returns to the impact of the ruling IRL, which is indeed the crux of the matter. “The majority claims that the reliance interests women have in Roe and Casey are too ‘intangible’ for the Court to consider, even if it were inclined to do so…This is to ignore as judges what we know as men and women. The interests women have in Roe and Casey are perfectly, viscerally concrete. Countless women will now make different decisions about careers, education, relationships, and whether to try to become pregnant than they would have when Roe served as a backstop. Other women will carry pregnancies to term, with all the costs and risk of harm that involves, when they would previously have chosen to obtain
an abortion. For millions of women, Roe and Casey have been critical in giving them control of their bodies and their lives. Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear. The majority cannot escape its obligation to ‘count[] the cost[s]’ of its decision by invoking the ‘conflicting arguments’ of ‘contending sides’…The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.” There’s a fundamental principle at stake here as well: “Rescinding an individual right in its entirety and conferring it on the State, an action the Court takes today for the first time in history, affects all who have relied on our constitutional system of government and its structure of individual liberties protected from state oversight.”

Finally, the dissent addresses the impact of this decision on the Court itself and respect for the legal system in general: “We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.” Take a second and consider the gravity of that statement.

The dissent ends with a bitter indictment of the majority who endorsed this decision: “Now a new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey. It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans…It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

It concludes: “In overruling Roe and Casey, this Court betrays its guiding principles. With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

One more thing–The elephant in the room. There is a fundamental dishonesty in this entire discussion, and that involves the total absence of any acknowledgement of the centrality of religion in this entire Court decision. The opposition to abortion is mostly based on religious belief–specifically Roman Catholic dogma and that of certain fundamentalist Christian sects. The five Justices–Alito, Kavanaugh, Barrett, Gorsuch, and Thomas–who are the driving force behind the majority decision constitute a group that should rightfully be called the Court’s Religious Majority. All of them are Catholics, except Gorsuch (who was raised Catholic and whose mother Ann Gorsuch, who headed the EPA under Reagan, was Catholic and a staunch foe of abortion).  They consistently write and endorse decisions that have thoroughly eroded the separation of Church (Christian, specifically) and State. This decision is no different. It amounts to the imposition of a specific religious belief on the entirety of American society. 

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