Roe and Dobbs, and Everything in Between: A Guide for the Perplexed (PART I)

By ALMA DIAMOND

This is part one of a two-part series on the United States Supreme Court decision to overrule Roe v. Wade. You can read the second part of the series here.

When the Supreme Court of the United States handed down the Dobbs decision in June this year, nobody was really surprised. The decision had leaked earlier in an unprecedented breach of trust at the Court, and in any case: Roe had been on the chopping block for years. Appointments to the Court had been made with the barely disguised (sometimes openly flaunted) objective of overturning Roe.

Coverage and analysis of the decision is, as everything else in the U.S., firmly divided along partisan lines. The coverage has mostly been presented in political and moral, historical, and ideological terms. This is as it should be: the issues at hand are of important moral and political consequence. As a result, however, there has been a relative dearth of popular discussion of the legal history and framework of the decision. That is this blogpost’s small contribution to an important public conversation: a guide to the legal issues and history, and to the changing Court that shaped these, over the past 50 years.

Reality Check

The restrained and legalised tone of this blogpost should not be confused for complacency. I start, therefore, with  an acknowledgement of the lives shaped and the harms wreaked by this decision. When it handed down Dobbs in June of this year, the Supreme Court of the United States overruled 50 years of precedent, concluding that US Constitution confers no right to abortion. In July, eleven states banned abortion completely or implemented a six-week ban. By July 24, only 28 clinics remained in these states (down from 71 a month earlier). Fifteen more states are poised to ban abortion or significantly restrict it. These outcomes are predictably related to deteriorated maternal and child health outcomes, and higher rates of maternal and infant mortality.

The United States mandates no paid family leave, provides no universal healthcare, and lags extraordinarily far behind peer countries in social support for childrearing (peer nations contribute on average $14,000 for a toddler’s care, the U.S. $500). This means that the ability to absorb the risks and costs of this ruling will depend on one’s private wealth: the capacity to move or travel to states that do provide abortions; the often employment-related availability of health insurance to cover the costs of healthcare; and the additional disposable income to care for a child (59% of women seeking abortion already have children: it is often a choice about resource allocation). In states restricting abortion, the women most likely to face immediate harms to their health and socioeconomic position will be low-income women of color. This perpetuates the patterns of exclusion and oppression that characterizes so much of American life.

The decision also withdraws what many women had held onto as an affirmation of their equal status and dignity under the law. On my block in Brooklyn, there are stickers on every lamppost: “forced motherhood is female enslavement”. And it affirms an ever more urgent concern about the state of American democracy. The decision was handed down by a court strictly divided along partisan lines: Republican-appointed Justices in the majority, Democrat-appointed justices in the minority. Five of the six Republican-appointed Justices were nominated by Republican presidents who lost the popular vote, one of those Presidents won the election due to a 5-4 Constitutional Court decision in which five Republican-appointed Justices voted in his favor. The same Court claiming to be returning the issue of abortion to the democratic process has in other decisions been limiting and circumscribing the applicability of the Voting Rights Act and refusing to rule on partisan gerrymandering.

These issues present deeply threatening and existential challenges: to women, to communities, to voters, but also to American democracy and to the rule of law. As a result, the fallout from the decision has been analyzed in mostly political, and personal, tones. But for those of us not steeped in U.S. constitutional doctrine and practice, this has left the debate quite unmoored from the jurisprudential arguments raised in support of Dobbs. In this blogpost, I offer a guide on these arguments and how they had been shaped by 50 years of jurisprudence and judicial politics.

Roe v. Wade (1973)

Though abortion seemed to have been legal (at least prior to “quickening”) at the founding and the several decades thereafter, most states outlawed the procedure starting in the mid-nineteenth century. This was followed by a trend towards liberalization in some parts of the Union. By 1972, seventeen states had repealed or reformed their anti-abortion laws, rendering abortion care available under at least certain circumstances. This left more than 30 states in which abortion was illegal.

It was in this context that the Supreme Court (“the Court”) handed down their decision in Roe v. Wade in 1973. Norma Leah Nelson, named Jane Roe in court documents, challenged the constitutionality of a Texas law which made abortion illegal except by doctor’s orders and only to save a woman’s life. Her argument rested upon claims to a constitutional right to personal privacy. As the Court noted, the U.S. Constitution (“the Constitution”) does not directly mention a right to personal privacy. However, a line of judicial precedent had found that the Constitution offers implicit protection of personal privacy in a range of different instances. The Court had found constitutional protection for personal privacy in the use of contraception – first within a marriage (Griswold v. Connecticut), later also outside of it (Eisenstadt v. Baird); in the private possession of obscene materials (Stanley v. Georgia); in the decision to procreate and the right to be protected from government-mandated sterilization (Skinner v. Oklahoma); in a reasonable expectation of privacy in the context searches and seizures (Katz v. United States); in the decision to marry a person of another race (Loving v. Virginia); and in decisions about childrearing and education (Meyer v. Nebraska; Pierce v. Society of Sisters).

These protections of the right to personal privacy did not all rely on similar constitutional reasoning. Some of the were subsumed under existing textual provisions in the Constitution, such as the Fourth and the Fifth Amendment protecting against unlawful searches and seizures and against self-incrimination (Katz) or the First Amendment’s protection of freedom of expression (Stanley). Some were rooted in the Equal Protection Clause of the Fourteenth Amendment (providing that no state shall “deny any person within its jurisdiction the equal protection of the laws”). It was on this basis that protections from governmental intrusions into decisions about marriage along racial lines, procreation, and contraception were recognized (Loving, Skinner & Eisenstadt). The Griswold decision somewhat infamously held that various of the guarantees in the Bill of Rights have “penumbras” and “emanations” which establish a right to privacy.

In Roe v. Wade, the Court interpreted the Griswold decision as rooted in the Due Process Clause of the Fourteenth Amendment (providing that no State shall “deprive any person of life, liberty, or property, without due process of law”). The Court held that “liberty”, here, had to be interpreted broadly to not only include rights explicitly listed in the Constitution, but also unenumerated rights foundational to the very notion of constitutional freedom upon which the legal order rests. And, the Court found, this protection encompassed a right to personal privacy in decisions about whether to terminate one’s pregnancy (p.153).

This line of reasoning is often captured under the doctrinal label “substantive due process”. The doctrine holds that, encompassed by the constitutional protection from deprivation of “liberty” without “due process of law” are not only a guarantee of procedural limits on legal regulation, but also substantive limits. Certain spheres of life, or kinds of activities, are placed beyond the reach of normal governmental regulation. Later decisions by the Court would find such constitutional protection for same-sex intimate relations (Lawrence v. Texas) and marriage (Obergefell v. Hodges). In Roe, the Court found that the decision to continue a pregnancy fell within such a sphere of protection.

This meant that any state’s infringement upon this personal decision would be subject to heightened judicial scrutiny. Whereas state action usually demands a high level of judicial deference and a presumption of constitutionality, any infringement upon the right to obtain an abortion would be subject to careful (strict) scrutiny. Under other circumstances, a court would only invalidate legislation if it could be shown to lack a rational basis. But for legislation infringing on fundamental rights such as the right to terminate one’s pregnancy, a court would have to determine whether the legislation was narrowly tailored to serve compelling and legitimate state interests.

The Court in Roe v. Wade recognized compelling and legitimate state interests: in protecting the health of women, in setting medical standards, and in protecting “potentiality of human life” (p. 162). The result of these competing considerations was a compromise: in the first trimester of pregnancy, states would not be permitted to regulate the abortion decision. In the second trimester, states would be able to impose restrictions reasonably related to maternal health. In the third, once a fetus reaches viability, states may regulate abortions or prohibit them entirely, so long as there are exceptions for women’s health.

Despite being celebrated for its effect, the Roe decision was (and remains) widely criticized. In a dissenting opinion, Justice White called it an exercise in “raw judicial power”. Criticism has focused on three points. First, that the Court had not (and could not, perhaps) root its decision in Constitutional text or in precedent: that the decision to terminate a pregnancy simply was not a protected liberty under the Constitution. Second, that the Court’s reasoning did not justify the framework it set out–on what basis was the first trimester of pregnancy protected from regulation pursuant to legitimate state interests but not the second, for example? In this respect, the Court’s decision resembled “legislative policymaking from the bench”, an image that has since haunted judicial politics in America. Third, that the framework itself was unworkable: the balancing of state interests with personal liberties it required would always amount to unconstrained judicial discretion and result in legal uncertainty.

Planned Parenthood v. Casey (1992)

Abortion became a flashpoint in American politics. Ronald Reagan made opposition to abortion rights an important part of his presidential politics (this despite earlier in his career having signed a California statute easing access to abortions). As President, he wrote an essay in support of the life of the unborn, expressing his wish that Roe v. Wade be overturned (“make no mistake, abortion on demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the Court’s result, has argued that the framers intended to create such a right”). While President, Reagan appointed three justices to the Supreme Court: Justices O’Connor, Scalia, and Kennedy. Opposition to abortion was also a centerpiece of George H.W. Bush’s presidency: his administration opposed federal funding for abortion. Bush appointed two justices to the Supreme Court: Justices Souter and Thomas.

It was this newly conservative bench that had the opportunity to revisit the Roe holding in Planned Parenthood v. Casey in 1992. In a bitterly contested 5-4 decision, the Court acknowledged the difficulties with the Roe, but declined to overrule it. The Court felt itself bound by the ideal of the rule of law requiring that the Justices honor settled precedent and that they show regard for the interests of millions of Americans who had made life and career decisions in reliance upon the Roe holding. The decision also held that problems with the standards in Roe did not negate the core holding: “liberty must not be extinguished for want of a line that is clear” (p.869).

In reality, however, Casey did overrule much of Roe. It held that the state had legitimate interests in regulating abortion from the outset of pregnancy. Prior to viability (the fetus’s ability to live independently of the mother), states would be allowed to restrict and regulate abortion as long as these measures did not amount to “undue burdens” upon those seeking abortions. Efforts to dissuade women from seeking abortions, or to encourage them to reconsider, would not be considered “undue burdens”. After viability, states would be allowed to prohibit abortion, so long as there were exceptions made for the health of the mother.

“Undue Burdens”: State Regulations and the Carhart Cases

States continued to adopt a wide range of abortion regulations and restrictions, the constitutionality of which now had to be determined by asking whether they imposed “undue burdens” upon those seeking abortion. By one measure, states had enacted 1,381 abortion restrictions since the Roe decision.

These restrictions run the gamut: states banned certain abortion methods or abortion under certain circumstances or stages of pregnancy; imposed reporting requirements; imposed medical or regulatory requirements on physicians and facilities involved in abortion care; limited or withdrew public funding for abortion care; restricted coverage of abortion care by private health insurance providers; mandated counselling, reporting, or ultrasounds before abortions could be administered; imposed mandatory waiting periods or parental involvement for minors seeking abortions. Abortion access differed dramatically between states – and does so even more today.

Bill Clinton ran for president as one of the first pro-choice Democrats, but his position was ambiguous: moderate at best, deceptive at worst. In an attempt at coalition-building, and true to his uncanny political instincts, he coined the timeless phrase: he wanted abortions to be “safe, legal, and rare”. During his tenure he appointed Justices Ginsburg and Breyer. Shortly before her nomination to the Supreme Court, then Judge Ginsburg had delivered an address in which she expressed some doubts the reasoning in Roe v. Wade as an example of a “doctrinal limb” that had been “too swiftly assembled”. Ginsburg believed that abortion is central to a woman’s life and dignity, and that Roe ought to have been decided on the basis of liberty and equal protection, rather than due process.

In 2000, the Court heard Stenberg v. Carhart, a case concerning a Nebraska statute prohibiting intact dilation and extraction (D&X), a late-term abortion procedure popularly known as “partial birth abortion”. The Court struck down the statute as unconstitutional in a 5-4 decision. The statute was found to impose an undue burden on those seeking abortions because it precluded procedures that might be medically necessary. In response, Congress passed a statute banning the procedure federally, with no exception for women’s health.

When this Act was challenged, it came before a changed court: Justice O’Connor had retired and been replaced by Samuel Alito, a judge from the Third Circuit who was on the record as rejecting the “undue burden” standard. In a 5-4 decision, the Court upheld the federal statute (Gonzales v. Carhart). Whereas the Nebraska statute had imposed an undue burden, the federal statute did not because the latter included a more circumscribed definition of the banned procedure.

Here, already, it seemed that changes in the court’s composition, rather than in the issues at hand, were driving developments in abortion jurisprudence. Justice Ginsberg wrote the dissent, in which she accused the majority of refusing to take Casey seriously, of offering “flimsy and transparent justifications”. She noted that the Court, “differently composed” than the one who decided Casey, seemed “hardly faithful” to the rule of law and principles of stare decisis. This was Justice Ginsburg at her most prescient.

Bibliography

Gold, Rachel Benson. 1990. Abortion and Women’s Health: A Turning Point for America? New York: The Alan Guttmacher Institute.

Reagan, Ronald. 1986. Abortion and the Conscience of the Nation. The Catholic Lawyer Vol. 30 No. 2.

Center for Reproductive Rights & Ibis Reproductive Health, Evaluating Priorities: Measuring Women’s and Children’s Health and Well-being Against Abortion Restrictions in States (2017).

Court Decisions