Written by Carmel Johnson, J.D.
A few weeks ago, the USSC published its decision in Dobbs v Jackson Women’s Health, striking down its 1973 decision Roe v Wade. Roe v Wade was the 1973 USSC case which created a right for Americans to have (or perform) an abortion during the pre-viability phase of a pregnancy. The Dobbs decision ignited a firestorm of highly politicized controversy.
What did the Dobbs decision actually say? More broadly, what are rights, and who can create one or take it away?
What Are Federal Rights?
At a practical level, the US Constitution creates Federal “rights” by limiting or eliminating governments’ abilities to restrict some activity, or take a certain kind of action. So, for example, when we say that the First Amendment to the US Constitution establishes a right to free speech, what it actually says is that “Congress shall make no law respecting … or abridging the freedom of speech.” (Our founders knew that politicians will meddle with anything they can, if not prevented!) The incorporation doctrine extends these limits to state and local governments. Thus if a right is defined in the Constitution, then no legislature - whether Federal, state or local - can infringe on it, limit it, or interfere with it.
Bottom line: no state or other government entity can have a law that infringes on a right protected by the Constitution. Whatever a government can’t legally (constitutionally) prevent you from doing, is a “right.”
The Supreme Court’s Role
The Judicial branch’s job is to interpret our laws. When a suit alleges that a state law infringes unlawfully on a constitutional right, it is up to a Federal court to decide if it does; and to do that, the court first has to decide whether the right exists. Remember that it is never a court’s job to create laws. That is solely the role of a legislature (Congress, in the case of Federal laws.)
What did Roe v Wade say?
In the 1973 Roe case, the Supreme Court had to decide whether a Texas law, which prohibited abortion except in cases of a mother’s health requirement, was in conflict with the Constitution. In other words, was it legal for a state to regulate abortion, or was abortion access a right protected in the Constitution, so that no state could be allowed to infringe it?
Abortion is not mentioned in the Constitution, but the Roe court decided that other provisions of the Constitution, particularly the 14th Amendment’s requirement for “Due Process”, imply a right to bodily liberty and privacy, which should extend to a person’s right to decide whether to abort her pregnancy. Having made this inference, the Court then weighed that right against the state’s interest in regulating abortion. It decided that a state could regulate (limit) abortion after a pregnancy was viable, but not before. Therefore, before her fetus was viable outside her body, a woman had the right to end her pregnancy. This ruling was upheld later in Casey v Planned Parenthood.
Big picture takeaway: the Roe court interpreted “Due Process” to mean a general right to bodily freedom and autonomy, including abortion.
What does Dobbs say?
The Dobbs case came about when a local abortion clinic sued the State of Mississippi, alleging that Mississippi’s law, which banned abortion after 15 weeks’ gestation except in cases where a mother’s health required it, was too restrictive.
The Supreme Court went further than deciding whether 15 weeks was the right point at which to consider a fetus viable. Instead, it revisited Roe and Casey, examined the legal theories that had led to the creation of a Constitutional right to abortion in the Roe case, and held that those cases had been decided incorrectly. The Dobbs decision holds that abortion is not an issue addressed in the Constitution, and therefore that it should be within each state’s own regulatory power, not the Federal government’s.
Dobbs’ major point is that Roe misinterpreted the doctrine of due process, and that the doctrine should never have been used to create a new substantive Federal right.
Due Process: What is It?
This question - “what is Due Process, and what does it require” - is the crux both of Roe and Dobbs.
The 14th Amendment is one of the three amendments (13th, 14th and 15th) passed in the wake of the Civil War, meant to solidify the rights of former slaves and eliminate racial discrimination in government. It guarantees citizens equal protection under the law, as well as “due process” of law, without which no state may “deprive any person of life, liberty or property.”
The Roe majority interpreted Due Process to mean a general right to freedom and autonomy, which as a practical matter can apply wherever the court finds that a fundamentally important right ought to exist. (This was not a unanimous decision. Chief Judge Rehnquist dissented, saying that the Due Process requirement did not mean this at all.)
The Dobbs majority, in an argument similar to Rehnquist’s dissent in Roe, says that Due Process only means a right to whatever the correct procedural treatment is. (For instance, a criminal defendant must receive whatever the applicable law entitles her to, in terms of warnings, representation, and a fair trial.) Under this interpretation, the Due Process clause cannot be used to create new, substantive rights.
The Dobbs decision removes the Federal right to abortion, on the basis that there is nothing in the Constitution that establishes such a right. Without a Federal limitation, each state must deal with the issue on its own. Dobbs does not limit or establish any state law. It does the opposite: it removes Federal authority over the issue. Now each state must make its own abortion law.
State Actions
With Federal limitation removed, many states have rushed to create their own abortion laws. California’s legislature voted to put a state constitutional amendment on the November ballot: this November, Californians will vote on whether to amend our state constitution create an unlimited state right to abortion and contraception. Kansas voted to keep abortion legal in Kansas. Louisiana has outlawed abortion in most cases, with exceptions outlined for various medical conditions that render a fetus inviable or threaten the life of the mother. Ultimately every state will have its own law. People have wondered what will happen when people seeking abortion will travel from abortion-limiting states to abortion-available states. In general, the Interstate Commerce Clause of the US Constitution prohibits any state from interfering with travel to another state, but that doesn’t mean politicians won’t try…
Stay tuned!
Read the Dobbs decision for yourself here.
Read Roe v Wade here
