A Dispassionate View of the End of Roe

Day 5,337, 14:56 • Published in USA USA • by 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!