In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned its 1973 opinion in Roe v. Wade holding that the Constitution protects the right to abortion and its 1992 opinion in Planned Parenthood v. Casey reaffirming Roe’s holding. In the 6-3 opinion in Dobbs, the Court held that “The Constitution does not confer a right to abortion…. and the authority to regulate abortion is returned to the people and their elected representatives.”
The Court’s decision in Dobbs came near the end of a tumultuous term where a draft of the majority opinion was leaked to the press more than a month prior to the official release of the opinion. The Court’s decision also comes over 49 years after the Court decided Roe v. Wade.
Roe v. Wade
Roe v. Wade was one of the Supreme Court’s most high-profile decisions and it no doubt had an enormous impact on our country, both legally and politically. It would be impossible to draft an article that comprehensively covered both Roe’s impact and what a post-Roe country and legal profession will look like. However, it is important to understand the key takeaways from the Court’s landmark decision in Dobbs given the ongoing contentious debate and discussion that is only just beginning. Here are some of the key takeaways of the Court’s decision:
- Counting Heads: The Court’s decision was 6-3 and Justice Alito authored the majority opinion which was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts authored a separate opinion where he concurred in the judgment but stated that he would not go so far as to overturn Roe and Casey. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
- The Essential Holding: The Court’s holding was explained by Justice Alito in his majority opinion: “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.” The essential holding in Dobbs was to hold that the United States Constitution does not protect a right to abortion.
- The status of abortion following Dobbs: The Court was clear to state that it was not outlawing abortion. Justice Alito stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand.” The result of the Dobbs opinion was to “de-federalize” the issue of abortion and return the issue to the states to regulate. Stated differently, the Court removed the core issue of a right to abortion from the judicial process and returned it to the legislative process where it had always been prior to the Roe decision in 1973. Each state will now have an opportunity to regulate abortion as it sees fit. Many states already have “trigger laws” on the books regulating abortion in some way that would immediately take effect if Roe was ever overruled. There is no doubt following the Court’s decision that state legislatures will now become key battlegrounds in legally regulating or restricting abortion.
- What about Roe and Casey being “settled law?”: One of the key questions the Court confronted in its decision was how and when a previous court case may be overturned. The Court’s opinion places a higher value “on having the matter settled right” than just having it “settled.” The Court also noted the many times it had previously overruled a prior case including:
- Brown v. Board of Education, where the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities.
- West Coast Hotel Co. v. Parrish, where the Court overruled a previous case which had held that a law setting minimum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause.
- West Virginia Bd. of Ed. v. Barnette, where the Court, after only three years, overruled a prior case and held that public school students could not be compelled to salute the flag in violation of their sincere beliefs.
The Court also listed in a footnote dozens of other cases which had overruled previous cases, thereby demonstrating that overruling previous decisions has been a long-held tradition at the Court. However, the Court did state that overruling a prior decision should not be taken lightly and it provided a framework of five factors for when it should consider overruling prior caselaw. These factors include: (1) the nature of the Court’s error, (2) the quality of the reasoning of the previous case, (3) workability of the rule set forth in the previous case, (4) effect on other areas of the law, and (5) reliance interests. This framework will no doubt be used in subsequent cases where a court is called upon to overrule one of its previous decisions.
- The Court’s “final word”: Justice Alito concluded his opinion by stating: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. 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.”
More could (and will) be said about the Supreme Court’s decision in Dobbs, including its impact on women, men, abortion, adoption, politics, the law, and many other areas of American life. The longstanding debate about abortion will continue and may even intensify in some areas. The Court’s return of this issue to the legislative arena, at a minimum, localizes the issue and provides opportunity for hopefully healthy and productive debate moving forward.
It is difficult to end an article about what may be the Supreme Court’s most momentous decision on one of the most divisive and controversial issue confronting the American public. And it is important to recognize that this article only touches upon the most basic aspects of this landmark case. Like most issues in law and politics, the debate will continue, and more cases will come following the Court’s decision in Dobbs.
Our goal is to help you understand changes in the law and protect your interests throughout the process. Contact the offices of Provident Law today at (480) 388-3343 or online and schedule an appointment to speak with our attorneys about your legal matter.