“[T]here is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.”
— Spirit of the Laws
Contemporary American philosopher Ron White observed that “You can’t fix stupid!” That observation has been borne out in the Supreme Court’s decision in Dodds v Jackson Women’s Health Organization<,/em> which overruled Roe v Wade.
Judging by what I’ve heard from those most upset with the decision, it’s obvious they didn’t read Dobbs. It appears they have never read Roe either.
Dobbs upheld, against constitutional challenge, a Mississippi statute “that generally prohibits an abortion after the 15th week of pregnancy — several weeks before the point at which a fetus is now regarded as ‘viable outside the womb’. That statute was consistent with Roe, which Roe’s supporters either don’t know, or selectively choose to forget.
Here’s what Roe held,
“During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Finally, in “the stage subsequent to viability,” which in 1973 roughly coincided with the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Roe recognized the states could regulate abortion, including “proscribing” (outlawing) it completely, at certain stages of pregnancy. Dobbs does the same.
Contrary to what the most vocal opponents of the Dobbs decision are screeching, it did not outlaw abortion. It simply held — just as Roe did – that legislatures in the states can decide how to regulate abortion. The only difference between the cases is that, under Dobbs, states can regulate during the first trimester as well.
“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.”
In some states Dobbs won’t effect abortion access at all. Some states may choose to regulate, or outlaw, all abortions. To what degree, if any, each state addresses abortion is up to their electorate.
As I explained in Part Two, the Court ruled in West Virginia v EPA that the separation of powers principle, on which our federal government is premised, precludes unelected bureaucrats in an administrative agency of the executive branch from usurping the exclusive power of the legislative branch to enact “general rules for the government of society”. Dobbs is based on that same principle.
It holds that nine unelected justices on the federal supreme court don’t have the authority to usurp the power of state legislatures on the question of regulating abortion. “[W]eighing of the relative importance of the fetus and mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.”
Taken together, the EPA and Dobbs rulings recognize that under our system of separation of powers, it is the exclusive province of legislatures, which are elected by and thus directly answerable to the voters, to resolve questions “of such magnitude and consequence” as abortion.
Those claiming “democracy is under attack” by the Court have it completely bass-ackwards. As the Dobbs majority said,
“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.”
That’s called DEMOCRACY.
Referring the question of abortion back to the electorate was appropriate since, as the Dobbs majority explains, there is no constitutional right to an abortion. Roe was simply, as Justice Byron White described it in 1973, an “exercise of raw judicial power”.
Power the states did not give the Court when they created it in the Constitution.
“The jurisdiction of the federal courts is very accurately defined and easily understood. It extends to the cases mentioned in the constitution, and to the execution of the laws of Congress respecting commerce, revenue and other general concerns.”
— Noah Webster, October 1787.
The Dobbs opinion goes to great lengths explaining why Roe was legally wrong to begin with. As they point out, Roe was based on a “feeling” that a right to abortion could be found “somewhere” in the Constitution but the justices who decided Roe couldn’t point to specifically where. Roe was based on feelings, not law.
The lack of any constitutional basis for the decision has been the subject of scholarly criticism since as soon as it was handed down. In 1973, Professor John Hart Ely, who taught constitutional law at Yale, Harvard and Stanford, wrote that Roe is “not constitutional law” at all and that it gave “almost no sense of an obligation to try to be”.
Another Harvard constitutional law professor, Laurance Tribe, wrote that a critical part of Roe’s reasoning “mistakes a definition for a syllogism.”
The Court acknowledged as much in 1992, when it decided the other case which Dobbs overruled, Planned Parenthood of Southeastern Pennsylvania v Casey. In Casey, the justices
“were split three ways” on the legal viability of Roe’s constitutional justification.
Two Justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more of its authors might have “reservations” about whether the Constitution protects a right to abortion.
Despite having “reservations about whether the Constitution protects a right to abortion”, in an effort to correct Roe’s constitutional deficiencies, Casey overruled Roe’s trimester scheme of regulations on abortion —opening the door for the nightmare of partial-birth abortion of viable fetuses, which even Roe said could be “proscribed” by the states in the third trimester.
So rather than contravening Roe, as legally ignorant abortion advocates blather on about, the Mississippi law upheld in Dobbs actually conforms to Roe’s trimester scheme. So those who claim Roe protected their constitutional right to abortion on demand at any time in a pregnancy are talking nonsense. It said no such thing.
In theory then, Dobbs could have upheld the Mississippi 15-week law by simply overruling Casey and re-affirming Roe’s trimester scheme. But in their brief of the Dobbs case, supporters of Roe told the Court it didn’t have that option.
“They tell us that ‘no half-measures’ are available: We must either reaffirm or overrule Roe and Casey.” The Dobbs decision did exactly what supporters of abortion, and Roe, asked for.
As Aesop (of Aesop’s Fables fame) said long ago, “Be careful what you wish for .. Lest it come true!”
Aesop’s admonition is merely a more elegant version of Ron White’s “You can’t fix stupid!”
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.