In overturning Roe and Casey, the Gorsuch-Kavanaugh-Barrett Court in Dobbs v. Jackson Women’s Health Organization confers on state governments the power to force a woman to bring a pregnancy to term. States may now enact restrictions on abortion, even ban abortion completely.
The Court does not require that states pay any regard to the woman and her family. States are not required to make exceptions for pregnancies that result from rape or sexual abuse. Nor need there be any exception in cases of severe fetal abnormality. Even those states that allow exceptions to protect the life or health of the mother may force doctors to choose between performing a needed medical procedure and the risk of prosecution if the mother’s life or health was not sufficiently endangered.
Justices Breyer, Sotomayor and Kagan in dissent describe the core significance of Dobbs. It is not merely a denial of access to safe abortion services. “From the very moment of fertilization, a woman has no rights to speak of.” The result of the majority’s decision to overrule Roe boils down to this: “the curtailment of women’s rights and of their status as free and equal citizens.”
What is a right? “The point of a right,” the dissenters write, “is to shield individual actions and decisions from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.” For 50 years, “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
The rationale—or more apt, the rationalization—employed by the Dobbs majority is that a right to have an abortion is not “deeply rooted in history” and therefore it cannot qualify as a right protected by the Constitution in the present day. But that rationale would lead the Court to an unavoidable conclusion: “all rights that have no history stretching back to the mid-19th century are insecure.”
It is not a great interpretive stretch to find that a woman’s reproductive rights fall within the protections enunciated in the Fourteenth Amendment (states may not make laws that abridge the privileges or immunities of citizens of the United States nor deprive any person of life, liberty or property, without due process of law). The Amendment’s concept of personal liberty protects “individual decision-making related to marriage, procreation, contraception, family relationships, and child rearing and education.”
Roe recognized that states had a valid interest in regulating abortion decisions. The Roe Court therefore “struck a balance turning on the stage of pregnancy at which the abortion would occur.” In the first trimester, “the woman’s choice must prevail.” After that point, the State could regulate to protect the woman’s health. After viability—when the fetus has the capability of “meaningful life” outside the mother’s womb—the State could ban abortion, “except when necessary to preserve the woman’s life or health.”
Casey reaffirmed Roe. A woman’s “right to choose” is grounded in the Fourteenth Amendment’s guarantee of “liberty.” The Casey Court said, “it is settled now that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, as well as bodily integrity.” While affirming a woman’s right to choose, Casey found that the State could regulate in the period prior to viability “to promote prenatal life” but could not place a “substantial obstacle in the path of a woman seeking an abortion.”
In a single fatal stroke, Dobbs reverses fifty years of the Court’s regard for a woman’s right to make personal decisions. This is a Court that simply does not care what obstacles a state may place—no matter how substantial–in the way of a woman’s decision to terminate a pregnancy.
The Dobbs majority, wrote the dissenters, “would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life.”
The Court absolves itself of any responsibility for the consequences of empowering state legislatures—creatures of local politics, mostly male—to interfere with a woman’s pregnant body and with her doctor’s medical advice regarding her pregnancy. It is no minor regulation, no temporary inconvenience. As the dissenters point out: “There are few greater incursions on a body than forcing a woman to complete a pregnancy and give birth.”
The dissenters make a broader point: “Rescinding an individual right in its entirety and conferring it on the State, an action that the Court takes today for the first time in history, affects all who have relied on our constitutional system of government and its structure of individual liberties protected from state oversight.”
Some other stuff for later,
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