This op-ed by Stephanie Randall appeared on Colorado Newsline on May 18, 2022.
The leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization drafted by Justice Alito in case 19-1392, looks to overturn the 1973 decision in Roe vs. Wade.
Dobbs is a case following a Mississippi law that bans almost all abortions after 15 weeks of pregnancy.
What exactly does this decision mean? Note that the leaked opinion has yet to be published by the Supreme Court and draft opinions are not set in stone. Justices sometimes change their positions after a draft is circulated.
Roe and the subsequent case of Planned Parenthood v. Casey in 1992 created precedent that prohibits states from restricting abortions before the point of viability and require that laws regulating abortion not pose an “undue burden.” Roe states that women have constitutional protections of abortion rights. The leaked opinion would uproot Roe’s precedence by allowing laws regulating abortion to be issued by state lawmakers. States would be allowed to restrict when and how women could terminate their pregnancies, without federal courts’ authority over the legality of those rules.
How does Alito legally support overturning the near 50-year-old precedence of Roe? To answer this, let us first answer the question, how did Roe legally support upholding a woman’s right to abortion?
In Roe, the court ruled that that the due process clause of the 14th Amendment to the United States Constitution provides a fundamental “right to privacy” and “right to liberty” that protect a pregnant woman’s right to choose whether to have an abortion. The Roe court noted that this right must be balanced against the government’s interests in protecting women’s health and prenatal life. Because the Roe court called the right to choose whether to have an abortion “fundamental,” it required the courts to use the highest level of judicial review of “strict scrutiny” when analyzing any challenges to abortion laws (later lowered to “undue burden standard” by the Casey decision).
Turning to Dobbs. Alito argues that Roe’s decision was “egregiously wrong from the start.” Alito addresses the legal theory of “unenumerated rights.” Unenumerated rights are rights that are not expressly mentioned in the Constitution but are inferred from the language, history, structure, or cases interpreting the Constitution. Unenumerated rights are just as much a constitutional right as if they were expressly stated in the Constitution. Examples of unenumerated rights are the right to travel, the right to privacy, right to marital privacy, right to send one’s child to a private school, and the right to choose to have an abortion.
Alito states that for the Supreme Court to find that an unenumerated right exists, it must be strongly rooted in U.S. history and tradition. Alito states that Roe was wrong because of his “inescapable conclusion” that a right to abortion is “not deeply rooted in the Nation’s history and traditions.”
Alito argues that the Roe decision was “remarkably loose in its treatment of the constitutional text” and that those who argue the right to an abortion must “show that the right is implicit in the constitutional text.”
If abortion is not an enumerated right, the Constitution only grants the individual states the power to regulate. This is precisely what Alito’s leaked opinion accomplishes.
What effect will the Dobbs decision have on abortion?
It is likely that most conservative states will enforce or create restrictions on abortion. Some states already have “trigger bans,” which would ban abortion entirely if Roe were overturned.
What effect will Dobbs have on other rights?
Dobbs will be analyzed and cited for years. Alito argued his opinion applied only to abortion. However, many wonder whether the willingness to disregard settled law will find its way into other issues. Alito fuels these concerns by his statement “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.”
According to Alito, the only unenumerated rights that survive are those that have strong foundations in history and tradition of this country. If a right does not pass this test, state legislatures can regulate.
The Supreme Court has a history of establishing unenumerated rights under the 14th Amendment: same sex marriage, contraceptive use, interracial marriage, and many others. These are rights that concern matters of “great social significance and moral substance.”
Will the current Supreme Court use its Dobbs rationale… and place these issues into state lawmakers’ hands?