A Dispassionate View of the End of Roe
Tito Magnus
The reversal of Roe v. Wade by the Supreme Court came as a shock to the nation. Rarely does the Supreme Court ever undo a previous standard, and even more rarely does the Supreme Court undo a ruling that has conveyed a federal Constitutional right for decades. To understand why this happened, we must first look back at the history of Roe v. Wade.
Brief History
In 1973 “Jane Roe”, a pseudonym for Norma McCorvey, filed a lawsuit against her local distract attorney, Henry Wade, claiming Texas’s anti-abortion laws were unconstitutional. In a 7-2 decision, the Supreme Court held in Roe v. Wade that the Constitution conveys a fundamental right to abortion as part of the doctrine of the “right to privacy.” Under this doctrine certain rights not explicitly enumerated in the Constitution were still guaranteed, such as the right to birth control, the right to marriage, the right to family, and more. The Supreme Court held the government owes a duty to balance the woman’s fundamental right to abortion with the child’s fundamental right to life, and held that abortions before the first trimester are legal whilst those after are not.
In Planned Parenthood v. Casey (1992), the Court upheld Roe but on different grounds, upholding Roe on the doctrine of stare decisis (“to stand by things decided”) but also implemented a new test prohibiting state laws that create an “undue burden” on a woman’s access to abortion. Dobs v. Jackson Woman’s Health Organization
In the now infamous case that overturned Roe, the Supreme Court overturned Roe and Casey. The Supreme Court held that the prior constitutional reasoning of Roe was flawed, that Casey was wrong for relying on the flawed reasoning of Roe, and that there is no general federal Constitutional right to abortion.
In reaching this decision, the Supreme Court held that the history and tradition of the United States indicates that abortion has always been a state’s rights issue. My Thoughts
As a law graduate studying for the bar, I obviously was eager to read the Supreme Court’s decision in Dobs, and naturally I tended to agree and disagree with some parts of the opinion.
Agree:
One of the more striking arguments in the opinion is that in 1973 the country was on the path towards allowing abortion. The Supreme Court quoted Ruth-Bader Ginsburg in stating that the nation was naturally moving in a pro-abortion direction when Roe suddenly imposed a national standard on the country and turned abortion into a hot button issue. Ironically, the Supreme Court appears to almost be arguing that by returning the issue of abortions to the state legislatures, the nation will be able to naturally move towards a pro-abortion stance again and the issue will no longer be a hot topic. It almost appears that the Court wishes the country to return to its 1973 position of moving towards pro-abortion laws slowly and at the state-level. I have not done the research about whether or not this was true in 1973, but it’s an argument that indicates that the decision isn’t based on an inherent dislike of abortion, but rather the idea that the Supreme Court made abortion a hot-topic issue in Roe v. Wade, and hopefully by undoing Roe it will cease to be so inflammatory.
Disagree.
I do not agree with Dobs’ central holding. I do not agree that the Supreme Court is limited in its ability to convey federal constitutional rights. The right to “bodily dignity” has already been established in the Supreme Court, and not allowing a woman to make a choice about her own body appears to fly in the face of this doctrine. Additionally, the 9th Amendment to the Constitution explicitly states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Thus it is rather obvious that the Supreme Court or legislatures can create new federal Constitutional rights, as it has in the past, and the idea that certain rights are exclusively reserved to the states is, in my mind, a legal fallacy.
Additionally, I disagree with the undoing of a federal standard that created a Constitutional right for 50 years. If the Supreme Court can undo rights that have been established for decades, then many other rights could similarly be thrown out the window. DISCLAIMER: The Supreme Court in Dobs explicitly stated they are not attacking the foundation of other Court-created rights under the “right to privacy”. That being said, I do not want to start a flame war in the comments section. If you agree with my position, then thank you. If you disagree with my position, that is your right and I encourage you to disagree with me. To quote Karl Popper, “The growth of knowledge depends entirely on disagreement.”
Please feel free to leave a comment if you agree or explaining your position if you disagree!
Comments
You forgot to put my interview:
https://www.youtube.com/watch?v=rxMfPZ-xKo4
wrt your disclaimer, it would be a mistake imo to overlook what Thomas wrote. He seemed eager to unravel and Court-protected "right to privacy". Quoting Amy Howe at scotusblog:
"...a concurring opinion by Thomas indicated that, at least for him, decisions like Griswold, Lawrence, and Obergefell are very much in doubt. Thomas reiterated his view that the Constitution’s due process clause only protects process – the right to have the government follow proper procedures before taking away someone’s life, liberty, or property. The due process clause, Thomas wrote, does not protect any substantive rights. Because the Alito opinion concluded that there is no right to an abortion even under the Supreme Court’s substantive due process cases, Thomas explained, he joined the court’s opinion. But in a future case, he urged, the court should “reject substantive due process entirely” and reconsider cases like Griswold, Lawrence, and Obergefell."
Notably, he omitted the Loving case, normally included when mentioning the other three.
* "and Court-protected" = "any Court-protected..."
Abortion was only ever a majority position in some coastal States, most of the middle States never were keen on it.
I find myself in agreement with the middle.
You can read the Supreme Court's opinion and dissents here:
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Here is a fairly even handed legal analysis:
youtu.be/wOvvBWSBwU0
"The law is VERY malleable to an enlightened mind." Me It all boils down to the first words of that tution yo was talking about "LIFE Liberty and the pursuit of happiness" the deprivation of a starting life in my opinion is worse than the deprivation of someone who has lived half of it. Also I dont know if anyone here knows but you can WRITE your OWN laws it is called a trust. I am not a uNITED STATES CITIZEN anymore because of it I have publicly declared the original trust written for me without my consent (birth certificate) null and void and because of that I no longer fall under federal jurisdiction. only a sheriff can arrest me WITH a warrant all others get sued for personal liability for violation of my trusts laws. (see link to previous article http://tinyurl.com/22sppj3j) STATES HAVE MORE POWER THAN THE FEDS this is why it falls back on the states to decide.
Besides there have been abortions throughout history anyway and you don't need a doctor with a tube to suck it out its called Yarrow and several other herb that do this naturally no pain and no watching your kid get picemealed out of your womb. And it costs little to nothing.
I really don't see why we don't consider pro-choice = pro-life. Like, I don't get why the side against abortion is called pro-life, when illegal abortions often lead to death for the women wanting to get an abortion. How is that "pro-life"? The way I see it, the only ones benefitting from abortion laws are undertakers. Is that what they mean by "pro-life"? That undertakers earn more money and thus can afford a better life?
o7
As a person who lives in Texas, I believe that over time, we deal with changes in what society consider Moral or Inmoral. But still, we also are dealing with some of the old aspects of what we thing about Goverment.
Texas is a Huge State, and have a lot of different people with different opinions about the issue.
In Texas we have the Big Cities (Dallas, San Antonio, Houston, Austin, El Paso) And we also have the Rural Texas (Places that are not over 200k million people per county, sometimes even lower) and we have the border. (Which their dynamics is different to the big cities in the Middle of Texas)
For some, is a Legislative issue. And is mainly about States power and legislation (And Texans take a lot of pride on that) For others is more like Woman Rights, and others are religious things...
In the Rio Grande Valley, we deal with those 3 perpectives. Because we are very close to Mexico, Mexican culture is going to play in a huge way how people think about this kind of topics, specially if Religion is a huge part of society.
But also other things like how government works in Brownsville (Where I live) or in Texas. And our representatives.
Because in Brownsville, many people like to act somehow Libertarian.
Some people might think that because we are very close to Mexico, people would just cross and do whatever they cnnot do in the USA (Like Drinking after being 18, or smoke weed, because in Mexico is legal since 2021.
Still many people (Most people) not really like to cross the border for that...