In Overturning Roe v. Wade, the United States Supreme Court Fulfilled Its Constitutional Responsibility

August 5, 2022

In Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), the United States Supreme Court overturned its 1973 decision in Roe v. Wade, 410 U.S. 113 (1973), which recognized a woman’s constitutional right to an abortion. In Dobbs, the Court held that the decision in Roe was incorrect and that the United States Constitution does not recognize any such right to end a pregnancy. Dobbs, 142 S.Ct. at 2234, 2243. Although many critics of the Court have interpreted the Dobbs decision as a direct attack on women’s rights, a closer look reveals that the Court instead chose to defend a fundamental principle of American democracy rather than take a position on a specific and highly controversial social issue. That is, in overturning the Roe decision, the Supreme Court acted according to the role that the Constitution assigns to it and thus its decision was about a much broader issue than abortion rights.

A bedrock principle of the American political structure is the separation of powers principle. The founders understood that political power must be dispersed to prevent it from accumulating in the hands of a few rulers and giving rise to tyranny. The dispersion of political power took the form of a division of decision-making authority across the three branches of government and between the federal government and the state governments. To prevent any one branch of government or governmental entity from seizing political power, the other branches and levels of government must check that power.

Since the Marshall Court’s 1803 decision in Marbury v. Madison, 5 U.S. 137 (1803) and its 1816 decision in Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), the United States Supreme Court has enjoyed the power of judicial review in federal and state contexts–that is, the power to determine the meaning of the U.S. Constitution and whether federal law and state laws are compatible with it. Although the power of judicial review is widely recognized as belonging to the U.S. Supreme Court, this authority may be abused just like the power that any branch or level of government holds. The system of checks and balances permits other branches or levels of government to place restrictions on any branch or level of government that is suspected of abusing its authority. However, some abuses of power are more difficult to restrain than others. The power of judicial review is an especially difficult power to limit. For example, suppose the Court employs its power of judicial review to declare laws unconstitutional based on what many observers regard as unreasonable interpretations of constitutional provisions. In that case, the most immediately available method that another branch of government may use to challenge that unreasonable interpretation may be to participate in amending the Constitution to clarify its meaning. The process of ratifying a constitutional amendment, however, is cumbersome and many citizens who favor the unreasonable interpretation will be inclined to oppose such an amendment.

An alternative method of correcting an abuse of the power of judicial review is for the Court itself to correct the abuse. The President, of course, may appoint new Supreme Court Justices who, with Senate confirmation, are then willing to correct past abuses stemming from unreasonable interpretations of the Constitution. However, because Supreme Court Justices serve during good behavior, this process may take many years. In the case of Roe v. Wade, many Americans have watched this situation unfold for nearly a half century. In 1973, the Court exceeded the bounds of the power assigned to it. Using the power of judicial review, it struck down a Texas law as unconstitutional based on an unreasonable interpretation of the Fourteenth Amendment. Given the difficult nature of amending the Constitution, the other branches of government were unable to directly confront what many Americans regarded as an abuse of judicial power. Nearly a half century passed before enough Justices committed to a reasonable reading of the Constitution would serve on the Court and decide a case that directly challenged the Roe opinion.

What was the Court’s interpretation of the Constitution according to its opinion in Roe?

Justice Harry Blackmun, who delivered the opinion of the Court in Roe v. Wade, acknowledged in the opinion that the “Constitution does not explicitly mention any right of privacy.” Roe, 410 U.S.at 152. Nevertheless, Justice Blackmun explained that the Court has found in several prior cases that the Constitution does recognize “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Id. In Roe, the Court decided that the right of privacy is found in the Fourteenth Amendment’s “concept of personal liberty” and that the concept “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id. at 153. The Court thus agreed "by a 7-2 vote and found that the right to abortion was a fundamental liberty protected by the [Fourteenth] Amendment, which says the states [cannot] deprive individuals of life, liberty or property without due process of law” (Kendall 2022).

In Roe, however, the Court plainly stated that it disagreed that a “woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Roe, 410 U.S. at 153. As Justice Blackmun explained in the majority opinion, a “State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” Id. at 154. Additionally, the Court explained that at “some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” Id.

The Court’s recognition of the tension between a woman’s right to end her pregnancy and the state’s interests in protecting potential life led it to establish the trimester framework found in Roe. According to that framework, during (approximately) the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Id. at 164. During (approximately) the second trimester, “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” Id. Finally, during (approximately) the final trimester when the point of viability is reached, “the State in promoting its interest in the potentiality of human life may, if it chooses, 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.” Id. at 164-65. ?

Therefore, roughly speaking, the Court in Roe declared that no state interference in the abortion decision should occur during the first trimester; the State may regulate abortion in ways reasonably related to maternal health in the second trimester; and the State may proscribe abortion during the third trimester except where it is medically necessary to preserve the life or health of the mother. Finally, the Court “leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.” Id. at 165.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the central holding in Roe v. Wade. The Court acknowledged that medical advances since 1973 could justify adjustments to the “scheme of time limits on the realization of competing interests” established in Roe. Casey, 505 U.S. at 860. For example, abortions that are safe for the mother could be performed later in a pregnancy and the point of viability of the fetus was found to be somewhat earlier. Id.??

In what sense was the Court’s decision in Roe an unreasonable interpretation of the Constitution?

Put simply, the Supreme Court in Roe assigned a meaning to the Fourteenth Amendment that, at best, is only convincing if one favors the ruling. The Fourteenth Amendment does permit deprivations of liberty subject to the limitation that due process of law is respected. To assert that the phrase “without due process of law” implies protection for specific substantive forms of liberty is to confuse the limitation on deprivations of liberty with liberty itself. ?

Roe was not the only Supreme Court ruling that has stretched the meaning of constitutional provisions to arrive at a specific policy conclusion. As Kendall (2022) explains, Roe “was the product of a time in which the [C]ourt took an expansive view of individual liberties protected by the Constitution[,]” and it became part of a much larger “debate over when and whether [it is] appropriate for the Supreme Court to recognize new individual rights under broadly written provisions in the Constitution.” As Justice Thomas correctly noted, however, “the [C]ourt erred [in Roe] by relying on the due-process clause as a source of specific rights” (Kendall and Bravin 2022). Understandably, many, if not most, Americans do not understand or appreciate the fact that something more is at stake in this debate than whether abortion should be legal.

Because abortion relates to issues of women’s health and bodily autonomy, on the one hand, and the protection of the unborn, on the other hand, people who have considered the issue frequently have struggled with how to balance those concerns. Many Americans find themselves leaning more in one direction or the other without entirely disregarding either concern. Rather than a simple dichotomy between pro-life and pro-choice perspectives, the issue gives rise to considerable variation in terms of the possible perspectives about how and when during a pregnancy an abortion should be allowed.

The Supreme Court recognized the competing interests at play in its Roe decision. Indeed, “Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’” Dobbs, 142 S.Ct. at 2236. In a sense, Roe was neither a pro-choice nor a pro-life decision in a pure sense, because of the specific compromise it struck between the conflicting interests, which reveals the complexity of the issue. As the Court noted in Dobbs, however, “the people of the various States may evaluate those interests differently.” Id. Indeed, they have as reflected in the tremendous variation in proposed and enacted abortion laws and regulations in different states throughout the nation.

Why should nine Americans, as highly educated and distinguished as Supreme Court Justices are, decide for the entire nation the specific balance that should be negotiated between a woman’s interest and the interest of a “potential life”? Supreme Court Justices are human beings with their own policy preferences. One factor that influenced the Court in Dobbs to overrule Roe was the quality of the reasoning in Roe. The Court’s criticism of its earlier decision suggested that the legal analysis in Roe was faulty because it allowed the policy preferences of the Justices to distort it. As the Court explained in Dobbs, “[w]ithout any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation.” Id. at 2237. Moreover, “[t]he scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.” Id. at 2238. By engaging in this exercise of self-criticism, the Court recognized that it had exceeded its constitutional role and indicated that it aimed to correct it.

In what sense did the Court’s ruling in Dobbs represent a reasoned interpretation of the Constitution?

In June 2022, the Court overturned Roe v. Wade in Dobbs. The Court’s decision to overrule the judgment in Roe stemmed from a constitutional challenge to a Mississippi state abortion law. “The [C]ourt voted 6-3 to side with Mississippi, but 5-4 on the broader question of whether to overrule Roe” (Kendall and Bravin 2022). The Court concluded that, in its Roe decision, it lacked a suitable basis for declaring a constitutional right to an abortion and thus that “the Roe decision was egregiously wrong” (Kendall and Bravin 2022). The Court, therefore, found that it had overstepped its bounds in Roe.

As previously mentioned, in Roe the Court acknowledged that the State has an interest in protecting the health of the mother and in protecting potential life. In Dobbs, the Court went further, identifying several legitimate state interests that include “protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; [and] the mitigation of fetal pain[,]” among others. Dobbs, 142 S.Ct. at 2284. The Court’s recognition of multiple legitimate state interests contributed to its decision to uphold the Mississippi abortion law.

The Mississippi law established a different timeline for abortion restrictions than the trimester framework found in Roe, thus giving rise to the constitutional challenge to that law. Specifically, the Mississippi law “generally prohibits an abortion after the [fifteenth] week of pregnancy–several weeks before the point at which a fetus is now regarded as ‘viable’ outside the womb.” Dobbs, 142 S.Ct. at 2242. Prior to passing this law, the Mississippi legislature conducted a factual investigation and noted that after twelve weeks of pregnancy a fetus has taken the shape of a human being “in all relevant respects.” Dobbs, 142 S.Ct. at 2243-44. The dilation and evacuation (D&E) procedure involves the insertion of “grasping forceps through the woman’s cervix and into the uterus to grab the fetus” before removing one body part at a time, which may involve as many as “10 to 15 passes with the forceps to evacuate the fetus in its entirety.” Gonzales v. Carhart, 550 U.S. 124, 135-36 (2007). Furthermore, the legislature found that the D&E procedure is the most common abortion method after fifteen weeks, which it concluded was “a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” Dobbs, 142 S.Ct. at 2244. Given the reference to several legitimate state interests that the law served, the Court concluded that the Mississippi legislature had a rational basis for this legislation.

Many critics of the Court’s recent decision in Dobbs have accused the Court of using its powerful position to deny women rights. On the contrary, the Court surrendered most of its power to decide this issue to state governments. Rather than condemning the Court for its decision in Dobbs, we should commend it for relinquishing its power to decide a controversial issue for the entire nation and for defending the Constitution above all else.

Even though the Court’s decision in Roe was flawed, should it have been retained?

An argument in support of upholding the decision in Roe is that the Court should not overturn an earlier decision because the nullification of a precedential opinion leads to inconsistency in the law and disrupts the plans of people who have relied on it. When the Court reaffirmed Roe in Casey in 1992, it adhered to the principle of stare decisis, which emphasizes the importance of honoring precedent. By contrast, in Dobbs, the Supreme Court rejected the argument that the principle of stare decisis “should protect Roe from reconsideration a half-century after it was argued” (Kendall and Bravin 2022). According to the Court in Dobbs, a “proper application of stare decisis [] requires an assessment of the strength of the grounds on which Roe was based.” Dobbs, 142 S.Ct. at 2234. The approach to precedential cases that the Court adopted in Dobbs is reasonable. The Court strives to build on the judicial opinions of the past, but it can only do so with confidence if those opinions rest on solid ground.

One might nevertheless argue that even if the reasoning of the Court in Roe was flawed, the judgment should be upheld because disturbing it disrupts firmly entrenched legal rights. For example, Bravin and Kendall (2021) note that, during oral arguments in Dobbs last year, the three liberal Justices on the Court were more sympathetic to the application of stare decisis as a justification for upholding Roe because abortion rights “are now deeply ingrained.” Although these considerations should not be dismissed lightly, rather than adherence to a precedent based on faulty reasoning, the superior solution is to educate the public about our constitutional system and the reason it is essential that legislatures, rather than courts, make decisions of this kind.

The difficulty inherent in overturning a decision as significant as Roe is reflected in Chief Justice Roberts’s decision to support upholding the Mississippi abortion law in Dobbs while also refusing to overturn Roe. As Bravin and Kendall (2021) explain, “Chief Justice John Roberts expressed openness to the 15-week ban at issue, putting aside broader implications for abortion rights. He suggested that reducing the time frame in which a woman could obtain an abortion wouldn’t dramatically abridge the ability to terminate an unwanted pregnancy.” The Chief Justice, therefore, did not join the majority in Dobbs in overturning Roe, but he did join it in upholding the Mississippi law.

Chief Justice Roberts’s refusal to join the majority in overturning Roe appears to be based on something more than his conclusion that the Mississippi fifteen-week ban on abortion is roughly compatible with the substance of Roe. C.J. Roberts’s primary concern seems to have been that overturning Roe would destabilize the legal system. The Chief Justice declared that the decision to overturn Roe and Casey constitutes “a serious jolt to the legal system—regardless of how you view those cases [and that a] narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case” (quoted in Kendall and Bravin 2022). As C.J. Roberts acknowledged, this consideration is an entirely practical one and is of such great importance that we need not even consider the merits of the earlier opinions.

C.J. Roberts’s perspective raises an important question: When should the Court overrule an earlier decision? As Kendall (2022) explains, “Justices have long argued over what special factors should be present for the Supreme Court to overrule a past decision.” In the context of a major past decision, like Roe, when should the Court overturn a flawed earlier decision even if it means causing a major disruption to the social system? The answer may be that the Court should do so when the flawed earlier decision has created its own disruption to the social system. For decades, the battle over abortion rights has been a central focus of national politics. Roe has created anger and resentment on both sides of the issue. Social mores and values have not adjusted in the direction of a national consensus on the abortion question, and the legitimacy of the federal judiciary is at risk because of it.

Both liberal and conservative Justices recognize the problem that the abortion rights battle has created in terms of public perceptions of the Court’s legitimacy, but they disagree about its source. For example, “when the court heard oral arguments in the Dobbs case in December, Justice Sotomayor questioned whether the court could ‘survive the stench’ created by perceptions ‘that the Constitution and its reading are just political acts’” (Kendall and Bravin 2022). The irony in viewing Roe’s nullification in this way is that the Court has returned to a neutral position on abortion rights with the Dobbs decision–hardly a political stance. If the Court in Dobbs had declared that the Constitution protects the rights of the unborn such that state laws permitting abortion are now unconstitutional, then the Court could be accused of a political act. It was the Supreme Court in 1973 that adopted a political position by issuing an opinion that contains content that should only properly be found in a statute, thereby thrusting abortion rights to the center of a national debate–a national debate that has led to a protracted social and political conflict that has threatened our national unity.

Even Justice Ruth Bader Ginsburg–a fierce defender of women’s rights–recognized the political nature of the opinion in Roe and that it had crossed a line in terms of the separation of powers. Ginsburg explicitly noted that Roe had intruded on the territory historically and constitutionally reserved for legislators. Shortly before she was nominated to the U.S. Supreme Court, Ginsburg stated in a speech at New York University that the decision in Roe “invited no dialogue with legislators [but rather that] it seemed entirely to remove the ball from the legislators’ court” (quoted in Blake 2022). In overturning Roe, the Supreme Court returned the ball to the legislators’ court, allowing the American people to participate in the governance process through their elected representatives.?

Conclusion

The fact that the abortion battle has moved to the states rather than remaining primarily at the federal level reveals that the Court relinquished political power rather than asserted it when it overturned Roe. The wide variety of responses to the Dobbs decision that we are witnessing among state governments demonstrates how varied opinions about abortion are and thus how complex the abortion question is. The high turnout for the Kansas referendum on abortion shows that the overturning of Roe has created a more engaged citizenry. The alternative of allowing a group of nine unelected federal officials to decide for the nation an issue that is this controversial reduces citizen involvement to almost nothing. Now we are seeing a surge of political activity on this issue that is appropriately directed at influencing state laws.

Alexander Hamilton’s early defense of the proposal for an independent federal judiciary helps shed light on the significance of Roe and the Court’s decision to overturn it. Hamilton (2019) argued in The Federalist No. 78, originally published in 1788, that the judiciary, as part of the proposed government, would have “no influence over either the sword or the purse.” Therefore, being the weakest of the three branches of government, the judiciary cannot successfully attack the executive or legislative branches and thus “all possible care is requisite to enable it to defend itself against their attacks” (Hamilton 2019). Hamilton (2019) thus defended the proposal that appointed federal judges “hold their offices during good behavior” to protect them from external pressure. At the same time, Hamilton (2019) recognized the fear of some critical observers that the power of the courts to declare laws unconstitutional “would imply a superiority of the judiciary to the legislative power.” If the courts decide to abuse this judicial power by distorting the meaning of the Constitution, the weakness of the judicial branch relative to the other branches would seem to suggest that mechanisms for addressing such abuses are readily available. That a decision like Roe remained good law for decades despite its disregard for the separation of powers principle is a testament to the commitment of the other branches to remaining within their constitutionally defined roles. The Supreme Court’s act of self-correction nearly fifty years later is a further testament to that institution’s willingness to ensure that current and future generations of Americans remain faithful to the nation’s founding principles. ???

Sources

Blake, Aaron. “What Ruth Bader Ginsburg really said about Roe v. Wade.” The Washington Post. June 27, 2022. Web.

Bravin, Jess, and Brent Kendall. “Supreme Court Majority Shows Openness to Mississippi’s Precedent-Breaking Abortion Law.” The Wall Street Journal. Updated December 1, 2021. Web.

Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022).

Gonzales v. Carhart, 550 U.S. 124 (2007).

Hamilton, Alexander. “Federalist No. 78.” Federalist Papers: Primary Documents in American History. Library of Congress: Research Guides. May 3, 2019. Last updated August 13, 2019. Web.

Kendall, Brent. “What Does Overturning Roe v. Wade Mean? What to Know About the Supreme Court Abortion Ruling.” The Wall Street Journal. Updated June 27, 2022. Web.

Kendall, Brent, and Jess Bravin. “Supreme Court Overturns Roe v. Wade, Eliminates Constitutional Right to Abortion.” The Wall Street Journal. Updated June 24, 2022. Web.

Marbury v. Madison, 5 U.S. 137 (1803).

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816).

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113 (1973).

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Photo: Thai, Tom. “The Supreme Court.” November 28, 2010. Attribution 4.0 International (CC BY 4.0). flickr.com.

Link to Photo: The Supreme Court | Tom Thai | Flickr

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