HOW THE SUPREME COURT GOT IT WRONG IN DOBBS

By Kara Dansky
President, WDI USA

Introduction

The U.S. chapter of Women’s Declaration International (WDI USA) stands categorically and unapologetically in support of women’s and girls’ right to terminate a pregnancy at will, on demand, and without apology. 

On June 24, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health, overturning Roe v. Wade and Planned Parenthood v. Casey (as explained in further detail below, in Casey, in 1992, the Supreme Court affirmed Roe’s central holding that abortion could not be outlawed but that states could impose limitations on its availability, and added a new rule that any such limitations cannot place an “undue burden” on women seeking an abortion). 

The next day, we issued this statement, vowing to continue fighting for women’s reproductive integrity, consistent with Article 3 of the Declaration on Women’s Sex-Based Rights, which reaffirms the rights of women and girls to physical and reproductive integrity and warns against the harms of laws and policies that force pregnancy.

Here, we do our best to summarize each opinion in the Dobbs case (the majority, the concurrences, and the dissent) and then explain our views on Roe and Casey and their undoing. 

The Court’s Opinions 

The Majority

The majority opinion (the one that prevails, as a legal matter) begins with an introduction, and then proceeds in seven parts. The introduction starts with this opening sentence: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views” and concludes by stating that the Constitution “demands” that Roe and Casey both be overturned. 

Part 1 describes the Mississippi law being challenged, the parties to the action, and the case’s procedural history. The simplest way to summarize this is to say that the Mississippi Gestational Age Act bans abortion after 15 weeks of pregnancy, under all circumstances (including rape and incest, and with no regard for the life or health of the pregnant woman). The Mississippi legislature enacted it in 2018. The lower courts (the federal district court and the federal appellate court) both ruled the law unconstitutional, and the state then asked the Supreme Court to take the case. It did not have to. The Supreme Court is not required to follow any particular set of rules when deciding whether to take up a case, nor is it required to provide any reasoning for its decision to take it or not. When the state asked the Court to take up this particular case, it posed the following question: whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The Supreme Court took up the case in order to resolve that question. In its opening brief, Mississippi later asked the Court to overrule Roe and Casey outright. 

Part 2 asks the question whether the Constitution confers a right to abortion and answers the question in the negative. It asks whether the word abortion appears on the text of the Constitution itself (of course it doesn’t – as the dissent points out, the men who wrote it in 1789 most likely did not have abortion uppermost in their minds at the time). It spends a bit of time on the concept of substantive due process (we’ll explore that in more detail in discussing Justice Thomas’s concurrence) and doesn’t locate a right to abortion there either. It scours the historical record for evidence that abortion was an important legal right when the 14th amendment was ratified in 1868 (again, of course it was not – since when in history have men in power cared about women’s rights at all?). The part concludes that “abortion is not an ‘integral part of a broader entrenched right’ and takes the dissenters to task for “failing to acknowledge the states’ interest in fetal life.”

Part 3 centers on the concept of stare decisis – the doctrine that courts should adhere to precedent when making decisions (it means “to stand by things decided” in Latin). Stare decisis turns out to be the single most important consideration in the case, as a legal matter (though not necessarily from a feminist perspective). In examining the nature of Roe and its reasoning, the Court finds that Roe’s reasoning was weak, that it was “irrelevant” in light of the nation’s broader history, that it failed to provide sufficient justification for certain lines that it drew, and that many pro-abortion legal analysis acknowledge that Roe’s underderlying reasoning was weak. It goes on to state that Casey’s “undue burden” test is “unworkable.” When considering whether to overturn a precedent, the Court is required to examine whether anyone had any “reliance interests” in the outcome of the precedent (i.e., whether the people had come to rely on it such that it might be worth protecting). The majority concludes that no one in America has any tangible or intangible reliance interests in Roe or Casey that are worth protecting. Finally, it notes that no other interests, such as an interest in contraception or in same-sex intimate relationships are affected by the decision.

Part 4 addresses, and dismisses, any concern that overturning Roe and Casey might undermine public confidence in the Court.

Part 5 explains all of the reasons why the majority thinks the concurrences and the dissent are wrong.

Part 6 concludes that “rational basis” is the appropriate standard for evaluating limitations on abortion. This means a limitation on the availability of abortion must be upheld if ​​there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. It states that such “legitimate interests” can 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.” It then goes on to conclude that the Mississippi law in question serves these interests.

Part 7 announces the decision – Roe and Casey are overturned.

The Concurrences

Justice Thomas filed a concurring opinion agreeing with the majority that there is no constitutional right to abortion. However, Justice Thomas would go further, and jettison the entire doctrine of substantive due process. Substantive due process is a legal doctrine that essentially establishes that certain fundamental rights are protected by the Due Process Clause of the 14th Amendment. It is basically the principle that in a free society, people should have the liberty to engage in certain freedoms, and that the Constitution protects that liberty. Thomas would do away with the entire legal doctrine and with all of the cases that relied on it, including cases involving the rights to contraception, same-sex marriage, and interracial marriage. In saying this, Thomas isn’t saying that people should not have these freedoms; he is saying that the Constitution does not protect them. He offers three reasons for his viewpoint: (1) substantive due process “exalts judges at the expense of the people,” (2) it distorts other areas of constitutional law, including equal protection, and (3) it is often wielded to “disastrous ends” (for example, the Dred Scott decision which upheld the “right” of white people to return black people who had escaped enslavement to their owners). 

Justice Kavanaugh filed a concurring opinion which basically boils down to three arguments:

1. He states that abortion is a “profoundly difficult and contentious issue” but the constitution doesn’t take a side. The ruling does not outlaw abortion, nor should it. The court lacks the authority to either create a constitutional right to abortion or to ban abortion (he then notes that Congress would have the authority to ban abortion legislatively).
2. He thinks that stare decisis is a difficult question in this case because it is complicated by Casey, but then he goes on to conclude that Casey ends up being irrelevant in the end. 
3. He thinks that other abortion-related legal questions can be easily answered. For example, he thinks that women cannot be prevented from traveling across state lines to obtain an abortion because there is a constitutional right to interstate travel.

Of the concurring opinions, we find Justice Roberts’s to be the most interesting, though of course we disagree with it. Justice Roberts maintains that all abortion law should abandon the viability line that Roe drew and that Casey upheld (Roe had held that states can limit and even ban post-viability abortions). Roberts goes to great lengths to stress the importance of judicial restraint, noting that the only question initially presented in the case was “whether abortion prohibitions before viability are always unconstitutional.” Mississippi began its arguments by noting, correctly, that answering that question does not require overturning Roe. Then, in its principal brief, Mississippi changed course out of nowhere and asked the Court to overturn Roe. Roberts states: “Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: 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.” Roberts ends up concurring in the judgment that the Mississippi law is constitutional, but he would not have overturned Roe and Casey.

The Dissent

The dissent (Justices Breyer, Sotomayor, and Kagan) is a full-throated endorsement of Roe and Casey and a complete repudiation of the majority opinion and two of the concurrences (although the dissenters disagree with Justice Roberts’s conclusion, they concede that it is a far cry from an out-right repeal of Roe and Casey).

Its introduction notes that Roe was grounded in a woman’s right to terminate a pregnancy, within limits, and now that is gone. There are now no limits to states’ or Congress’s ability to limit the availability of abortion (no exceptions for rape or incest, no exceptions to protect the life or health of women, no protection against criminalizing women for obtaining abortions, and no exceptions in cases of fetal death). It notes that this will be especially harmful to poor women who cannot afford to travel across state, or national, lines and observes that Roe and Casey struck a balance between a woman’s interests and the state’s interests, which the ruling discards. On the majority’s attempt to distinguish its opinion from cases involving other rights, it states: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The dissent explains its view that Roe and Casey were correctly decided and takes the majority to task for abandoning the principle of stare decisis. It notes further that even if Roe and Casey were incorrectly decided, that is not a good enough reason to undo decades of precedent. It explains that in order to overturn a precedent, the Court should be able to state some major legal or factual change that necessitates it, and the majority simply failed to do that. It argues that the only thing that has changed since Casey is the makeup of the Court, with a majority in place today that simply dislikes Roe. It states: “Casey understood that to deny individuals’ reliance on Roe was to ‘refuse to face the fact[s].’ Today the majority refuses to face the facts. The most striking feature of the majority is the absence of any serious discussion of how its ruling will affect women. By characterizing Casey’s reliance arguments as ‘generalized assertions about the national psyche,’ it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.”

It concludes by accusing the majority of creating a “loaded weapon” designed to “take aim at the rule of law.”

Our Positions on Roe and Casey and their Undoing

U.S. women would not be in this mess at all if women were considered fully autonomous human beings with free will. Even fitting abortion into a legal rights framework is frustrating because it should be unnecessary. At WDI USA, we long for a time when women will be uncategorically free (and we plan to plot a course toward that end during our fall convention). In the meantime, here we are.

As we stated here, the woman who argued Roe v. Wade was named Sarah Weddington. Weddington had started law school at the University of Texas in 1965, one of five women among 120 men in her class. She was twenty years old at the time. She would later date a man named Ron Weddington and, celibate until the two began discussing the possibility of marriage, began having sex with him and eventually became pregnant. Abortion was illegal in Texas at the time, and she was not prepared to have children, so they went to Mexico for an illegal abortion. She was one of the lucky ones in that her abortion was safe and healthy, and she survived. This is all publicly documented in Weddington’s 1992 Book “A Question of Choice.”

Weddington filed Roe v. Wade in the U.S. District Court for the Northern District of Texas on March 3, 1970, when she was just 25 years old. She would go on to argue it before the Supreme Court in 1972 at the age of 27, and in 1973, the Supreme Court ruled that states could not constitutionally ban abortion outright. States could place limitations on its availability under certain circumstances, but the ruling was clear: for the most part, U.S. women have the right to make our own decisions about our reproductive lives. Sarah Weddington died in December, 2021.

The eventual ruling in Roe established a 3-tiered approach for evaluating restriction on abortion access, which essentially boiled down to this:

• During the first trimester, no restrictions were permissible.
• During the second trimester, limited restrictions to protect a woman’s health were permissible.
• During the third trimester, limitations were permissible.

Planned Parenthood v. Casey is much less well-known. In that case the Court was deciding, like in Dobbs, whether to overturn Roe. It decided not to do so for all of the reasons set forth in the Dobbs dissent – there had been no major legal or factual change requiring it, and countless women had come to rely on Roe not only for obtaining abortions, but for planning and conducting their lives and their careers. American women had literally come to rely on Roe as a core aspect of participating in public life as active and equal members of society. The men in the Dobbs majority know this, of course, and that’s precisely what they did not like about Roe (as for Justice Amy Comey Barrett, WDI USA considers her to be nothing other than a traitor to her sex class). 

WDI USA has never particularly liked the reasoning of either Roe or Casey for two reasons: (1) neither went far enough to protect women’s reproductive liberty; and (2) it would have been much preferable for the initial analysis to have been grounded in the Equal Protection Clause of the 14th Amendment rather than in the Due Process Clause. Justice Ruth Bader Ginsburg made this argument repeatedly over the course of her career, and we think she was right. Nonetheless, under the circumstances, we firmly agree with the dissent that upending this 50-year-old precedent and ruining the lives of millions of women and girls is utterly appalling and a flagrant violation of the rule of law itself.

The flouting of stare decisis completely undermines both the general rule of law and the Supreme Court itself, and the majority’s complete dismissal of any public concern about this is grossly misplaced. Members of the Supreme Court are not elected political hacks, and they should not be acting like it.

Conclusion

Of course, we would prefer that women’s reproductive liberty not need to be protected in any provision of the Constitution because it should be obvious to everyone that women are fully autonomous human beings capable of making decisions about our own bodies. Unfortunately, however, we do not live in the world that WDI USA envisions for women and girls. Until we do, we will keep fighting for a world in which women and girls are truly free.

Men’s fundamental rights are never threatened as men. In our society and in our courts, men are presumed to be complete autonomous human beings. It’s time our law and policy makers start treating women that way too. 

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