Denver Newsroom, Jun 25, 2022 / 11:32 am
The U.S. Supreme Court on June 24 issued an opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and Planned Parenthood v. Casey, returning the question of abortion policy to the states and to the people’s elected representatives.
Why did the Court make this decision? Here are some of the reasons that the justices gave in the majority opinion for overturning Roe:
1. The Constitution makes no reference to abortion.
The opinion points out that abortion is not mentioned in the Constitution, nor, the opinion says, is such a right “implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”
2. Abortion is not “deeply rooted in this Nation’s history and tradition.”
Supreme Court precedent had held that any right not explicitly mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
“The right to abortion does not fall within this category,” the court concluded.
3. Abortion is “fundamentally different” than the subjects of related court decisions because it involves the taking of a life.
Abortion is “fundamentally different” from other decisions related to sexual relations, contraception, and marriage, the justices wrote, because it destroys what other court decisions call “fetal life” and what the Mississippi law in question describes as an “unborn human being.”
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the opinion says.
4. Thanks to Roe, women’s voices on abortion have not been heard.
By preventing the people’s elected representatives at the state and local levels from regulating abortion, the court argues that women’s voices — both pro- and anti-abortion — were silenced under Roe.
“Our decision…allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” said the Dobbs decision.
“Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
5. States have “legitimate interests” in regulating abortion.
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity” if there is “a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
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“These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability,” the decision explains.
6. Roe’s reasoning was “exceedingly weak.”
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” said Alito’s decision.
7. State consensus on abortion existed before Roe.
The right to abortion was “entirely unknown in American law” until the latter part of the 20th century, said Alito’s decision.
“Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
8. The Supreme Court can’t settle the abortion debate, but legislators may.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the decision says.
“This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power’.”
