Roe v Wade - Repeal of Freedoms & Human Rights

On Friday 24th June 2022 the U.S. Supreme Court voted to overturn Roe v. Wade in the Case Dobbs v. Jackson Women’s Health Organization. The majority decision, authored by Justice Samuel Alito, had been leaked in May and whilst shocking, the opinion was not entirely unexpected. Dobbs v. Jackson concerned a Mississippi law that banned abortions after the 15th week of pregnancy.

The right to abortion has typically flowed from the liberty interest in the Due Process clause of the Fourteenth Amendment. The decision is startling with regard to exactly how far it goes in repudiating liberty interest of the Fourteenth Amendment’s Due Process clause and how many other rights are implicated in the decision.

The decision has certainly brought about questions regarding the legitimacy of the Court, with many viewing this as a political move brought about by years of manoeuvring and political appointments. Such a narrow reading of the Constitution certainly brings into question whether the document still has relevance in the lives of modern Americans, and also whether an unelected Court that takes such a narrow reading should have such power of so many.

Legal Reasoning

The majority opinion of the court was written by Justice Alito, a conservative Justice who has long doubted the grounds on which Roe was decided, leading many to believe that this decision as inevitable.

The legal reasoning given for overturning Roe and Casey depended on two principles. One being the role of the constitution and the meaning of “liberty” in the 14th Amendment’s Due Process clause, and the other being stare decisis, the idea that the Court should uphold previous decisions.

In the majority decision, Justice Alito stated that “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.” Justice Alito contends that any right not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Since abortion is not mentioned in the constitution and is not widely considered to be deeply rooted in America’s history and tradition, it cannot be upheld as a constitutional right. This is an exceptionally narrow reading of the Constitution, and one that precludes the Court for considering many aspects of modern life. It also has deep implications for other rights decided under the Fourteenth Amendment such as the right to contraception or to engage in consensual sexual acts.

The doctrine of stare decisis states that the court should not undermine past decisions and was the doctrine on which the Casey opinion was based. Casey being another case concerning a woman’s right to have an abortion and established the ‘essential holding’ of Roe. Stare Decisis was discussed throughout the concurring and dissenting opinions, with the Justices seriously weighing up whether Roe and Casey merited overturning. In the majority opinion, Justice Alito stated that stare decisis does not apply to Roe because it was “egregiously wrong from the start.” The conservative Justices ruled that Roe and Casey were wrongly decided and should be overturned. They used the Case Dredd Scott v. Sandford as an example of a landmark case that was wrongly decided and later overturned. In Justice Roberts’ concurring opinion, he puts forward a discussion about judicial restraint, stating that he would have taken a less sweeping approach. Roberts discusses the fact that it would have been entirely possible to uphold the Mississippi law without reversing Roe and Casey.

Further Implications

Justice Clarence Thomas’s concurring opinion suggests that the court should revisit a number of other cases where the ruling stemmed from the 14th amendment. The cases mentioned include those that established the rights of married persons to receive contraceptives, of people to engage in private, consensual sexual acts, and to same-sex marriage. Thomas states that “any substantive due process decision is ‘demonstrably erroneous.’” In rejecting the idea that rights flowing from substantive due process are protected by the Constitution, the Court is potentially opening up the possibility that the government could interfere in the private matters of many Americans.

Religious Freedom

The reversal of Roe brings up an interesting religious freedom issue with Jewish groups across the US pointing out that Jewish halakha, the laws drawn from religious texts, sometimes requires abortions to take place. In Jewish legal thought, the foetus has potential, but not full personhood, and Jewish law requires abortion “if necessary to protect the health, mental or physical well-being of the woman.”

Pro-Life arguments are often raised by Evangelical Christian groups, and it has been suggested that bans on abortion stem from religious ideology and therefore violate the first amendment of the US constitution.

 Role of the Court and Constitution

The discussion around the right to abortion is animated by the conflict around whether rights not specifically enumerated in the constitution can be upheld by the courts. In the Casey ruling, Justice Sandra Day O’Connor wrote that “it is tempting, as a means of curbing the discretion of deferral judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against deferral interference by the express provisions of the first eight amendments to the Constitution.” The Fourteenth Amendment has always been previously understood to uphold a substantive component, and Justice O’Connor wrote that neither the Bill of Rights, nor the practices of States at the time of the Fourteenth Amendment, “marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”

In Dobbs, the Court has specified the outer limit of the substantive sphere of liberty by stating that it does not in fact exist, and only rights specifically enumerated in the Constitution can be protected. Both Justice Alito and Justice Roberts reference the parameters of the Court’s authority in the decision, but from different perspectives. Justice Alito speaks to the authority of the Court to establish and uphold rights, whereas Justice Roberts speaks more directly to the Court’s ability to reverse rights that it had previously established.

The role of the Court has never been to write policy, but rather to safeguard the People from policies that would deprive them of their rights. Alito cites Justice Scalia’s dissent in Casey and recommends that the issue of abortion should be returned to the people’s elected representatives. The repeal of Roe v Wade has certainly sparked a debate on the role of the US Court system plays in the control of freedom of choice and human rights.

By Kulsum Gulamhusein, Legal Intern & Emma Dubar, Solicitor