By: Andrew Green
Over the summer, the country was shocked by the Supreme Court of the United States’ decision in Dobbs v. Jackson Women’s Health Org., which held that the Constitution does not confer a right to abortion.[i] Justice Alito wrote the majority opinion and was joined by Clarence Thomas along with the three Trump appointed Justices, Gorsuch, Kavanaugh and Barrett.[ii] Chief Justice Roberts concurred in the judgment, arguing that the line established by Roe[iii] and Casey[iv] should be discarded and would limit the decision to the Mississippi law at issue.[v] All three liberal justices dissented in the opinion.
Roe v. Wade was decided by the United States Supreme Court in 1973.[vi] The court held that the constitutional right to privacy, which was implied from various aspects of the Bill of Rights, protects a woman’s right to choose to have an abortion. At the time, the Supreme Court was composed of all male members and the case was decided 7 – 2 in favor of Roe. The Court further noted that the right to an abortion is not absolute. The court wrote that it would not be appropriate for them to decide when an unborn fetus is considered a person.[vii] Further, the Court wrote that state is prohibited from regulating abortions during the first trimester.[viii] During the second trimester, the court held that states could regulate pursuant to regulating abortion procedures in ways that are reasonably related to the maternal health.[ix] In the last trimester, the court ruled that states can choose to regulate to promote potential human life except for abortions done to preserve the life or health of the mother.[x]
The Court reaffirmed Roe in 1992 when it held that a state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.[xi] Pennsylvania law required women to notify their husbands of their abortion.[xii] The court found this spousal notification to be an undue burden and the state was not permitted to give husbands effective veto over abortion decisions.[xiii]
Why was there anything wrong with this framework? Women fought for centuries to be afforded the same rights as men in this country. It would be quite foolish to think the court would ever hold that men are required to undergo vasectomies. As the Court properly stated in the Roe opinion regarding the potentiality of human life, “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”[xiv] It seems shocking to believe Justice Alito or any other conservative Supreme Court judge can now uproot a women’s constitutional right to choice with her own body without conclusive evidence that human life begins at the very beginning of pregnancy.
The scariest part is, 59% of the country disapprove of the Court’s decision to overturn Roe.[xv] These unelected Judges are no saints either. Alito is an extreme conservatist. Clarence Thomas sexually assaulted one of his coworkers and subordinates, Anita Hill.[xvi] All three trump-appointed justices lied about their views on abortion during their confirmation hearings. Gorsuch said that he accepted Roe as “the law of the land.”[xvii] Kavanaugh claimed to suggest that Roe had been “settled law” and said that he understood the importance of the precedent set by Roe and Casey.[xviii] Barrett claimed that her “personal, moral religious views” would not impact her judicial decisions.[xix] Additionally, Barrett may be the most unqualified justice to ever sit on the Supreme Court. She only practiced law for 2 years and never participated in a trial as a lawyer nor judge during her time at the 7th Circuit Court of Appeals. Other than that, she was a law school professor. There is a strong argument that her resume should not have got her one of the most crucial jobs in this country.
In the aftermath of overturning Roe v. Wade, 12 states have banned most abortions and an additional two states have banned abortions around six weeks of pregnancies, a time before many women know they are pregnant.[xx] So now the women who desperately need an abortion and cannot afford to travel across state lines for help, are now forced to take unconventional methods which are dangerous and carry substantial health risks.
Abortion may not be where the Court stops. Justice Thomas in a concurring opinion in Dobbs wrote that other landmark rulings should be reconsidered in the future which have established the right to contraception access, same-sex relationships, and same-sex marriages.[xxi] Ironically, Thomas attacks these other substantive due process rights but excludes biracial marriages, as he (a black man) is married to a white woman.
[i] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, (2022).
[ii] Id.
[iii] Roe v. Wade, 410 U.S. 113, (1973).
[iv] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, (1992).
[v] 142 S. Ct. at 2310.
[vi] 410 U.S. 113
[vii] Id. at 159.
[viii] Id. at 164.
[ix] Id.
[x] Id.
[xi] 505 U.S. 833.
[xii] Id.
[xiii] Id. at 898.
[xiv] 410 U.S. at 159.
[xv] Ariel Edwards-Levy, Majority of Americans disapprove of SCOTUS Roe v. Wade reversal, poll shows, CNN, June 28, 2022, https://www.cnn.com/2022/06/27/politics/americans-disapprove-supreme-court-abortion-poll/index.html.
[xvi] The allegations from Anita Hill did not stop Thomas from taking his seat on the Supreme Court. There was overwhelming evidence that Hill’s statements were accurate, and she even passed a polygraph test.
[xvii] Meredith Deliso, What the Trump-appointed Supreme Court justices previously said about Roe’s precedent, abc NEWS, June 24, 2022, https://abcnews.go.com/Politics/trump-appointed-supreme-court-justices-previously-roes-precedent/story?id=84470384.
[xviii] Id.
[xix] Id.
[xx] Allison McCann, Amy Schoenfeld Walker, Ava Sasani, Taylor Johnston, Larry Buchanan, and Jon Huang, Tracking the States Where Abortion Is Now Banned, The New York Times, Sept. 9, 2022, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.
[xxi] 142 S. Ct. at 2301.
