The US Supreme has overturned Roe versus Wade, a ruling over 50 years old that many saw as a legal framework that governed procreation rights.
Initially the hearing was limited to the overturning of the 15-week abortion ban in Mississippi since the case being heard was Dobbs v. Jackson Women’s Health Organization.
Justices voted predictably along ideological lines, with a vote of 6-3 to uphold a Mississippi law restricting most forms of abortion after 15 weeks, while splitting the vote 5-4 in the decision to overturn Roe.
Legal analyst agree the biggest surprise was Roberts opinion on viability and his subsequent vote in favor of upholding Roe.
Dobbs case questioned if “All pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a baby can survive outside the womb.
Roberts said that he agreed with upholding Mississippi’s 15-week abortion ban, but he disagreed that Roe and Casey needed to be overturned in the process.
Roberts stressed the need to “recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”
This essentially means that Roberts was implying that Roe didn’t actually need to be overturned in order to answer the question of “viability”, however another case with serious implications for abortion, the 1992 case of Planned Parenthood v. Casey which asserts that claim that states have no justification in creating an undue burden in process of getting an abortion was bound to be examined due to its creation of a legal framework or basis since Mississippi’s Gestational Age Act, the subject of the Dobbs case, bans abortion weeks before the point of viability and by definition would create an “undue burden”.
Of course definitions of an “undue burden” have been heavily debated in the court but ultimately the definition as defined by the court is “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The court majority excluding Roberts voted to overturn Roe, while confirming that part of its framework that included Planned Parenthood v. Casey was unclear and unsound.
Alito was more concise, “Roe and Casey have led to the distortion of many important but unrelated legal doctrines,” He went on to state “that effect provides further support for overruling those decisions.”
Alito seemed to imply that there is no constitutional basis for upholding the right to abortion.
In his opinion, Alito wrote that the court had to consider “whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”
Alito as well as the other 4 justices who voted to strike down Roe maintained that an individual’s rights of autonomy is separate from actions they intended to take and can’t be used as a justification for said actions.
Thomas broke it down in plain English.
“There is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause.” Thomas wrote.
The conservative Justices maintained that the 14th amendment doesn’t apply to abortion or other “at liberty” considerations like Obergefell v Hodges which asserts gay marriage as a “liberty” or in other cases like Griswold v Connecticut which asserts the usage of contraceptives as a “liberty” under the 14th amendment, which is a 100 year-old amendment passed to ensure that Black children couldn’t be put back into bondage after the end of chattel slavery.
Thomas made it clear that abortions are not considered a liberty under the constitution.
The dissenting Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan.
The majority of dissenting arguments revolved around what dissenting Justices saw as the majority’s disregard for the precedent established in Roe and reaffirmed in Planned Parenthood v. Casey.
“Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted. The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the dissent says.
The dissent also claimed that the current standards of viability and undue burdens are clear and “proved workable in courts across the country.”
Regarding the usage of the 14th amendment for the justification of personal liberties, the dissent stating that Roe and Casey “were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives.”
Critics argue that Thomas’s opinion clearly states that the 14th amendment was not intended to be an umbrella amendment, that it may represent personal autonomy but it does not alleviate the responsibility of the courts’ due process and subsequently policy created in its justification.
In simple terms, the 14th amendment was made to clearly define an individual’s autonomy not justify the use of drugs, or prostitution, or any other explicit act that would normally be deliberated by a court.
Dissenting Justices fired back by stating that “They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.”
Now the debate heads towards Congress and the Biden Administration where there are already calls from abortion supporters to make abortion a national law.
Others want President Joe Biden, who used to be against abortion prior to his election as Vice President to Barack Obama in 2008, to take executive actions to ensure that abortion remains a right. However, analyst concur that the Biden administration will have its hands tied as states will inevitably fight any overhauling of what is seen as an issue that was just settled by the highest court in the land.
–Barrington Williams, B1Daily
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