Unpacking the Dobbs Decision
In which I wade through primary sources so you don't have to.
Last Friday morning, the much anticipated (or dreaded to some) Dobbs v. Jackson Women’s health decision was released. In alignment with the early leaked opinion, the ruling reversed a lower court’s decision that Mississippi could not limit abortions based on gestational age because of the controlling opinions in Roe v. Wade and Planned Parenthood v. Casey. Since then, legacy media and social media have been overwhelmed with… lots and lots of misinformation and overheated rhetoric. Instead of our media serving to inform, they have instead chosen to inflame. I’ve already shared a few thoughts on Facebook, but I think there is so much garbage it was worth my time to write a broader summary of my thoughts in long form that attempts to put the decision and the abortion debate in context. So much for a relaxing Sunday evening :).
A Brief History of Abortion Laws
Most acts that people think of as criminal such as murder, theft and assault, are enacted by each of the 50 state. While there are nuances to how each state defines and punishes these acts, they are generally similar from state to state. With that in mind, why not have a single uniform federal law that covers everyone? That’s easy. While we are one nation, we are a nation of independent states. Our founders designed a Constitution that envisioned a specific role for the federal government that was quite limited and different from the states themselves. Over time, the role of the federal government has been expanded, often via the Supreme Court making egregiously bad decisions (more on that later).
Prior to 1970, abortion laws existed at the state level. While generally still quite restrictive, they had been slowly liberalizing over time. This process was short-circuited when Jane Roe filed suit against Henry Wade, district attorney for Dallas County, TX. The lawsuit challenged enforcement of Texas law banning abortion except via doctor’s orders to save a woman’s life on constitutional grounds citing a right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Ultimately, the Supreme Court agreed 7-2 (incidentally by 8 white men and 1 black men - not that I care, but many who are angry right now do) that the Fourteenth Amendment’s due process clause guaranteed a right to privacy that also included the right to abortion. The controlling opinion recognized a balance between the rights of the mother and the growing rights of the fetus creating a paradigm where states could ban abortion in the 3rd trimester with exceptions for life of the mother, could regulate with some restrictions within the 2nd trimester, and generally do nothing during the 1st trimester.
The trimester paradigm was updated in 1992 in Planned Parenthood v. Casey. At issue was a Pennsylvania law that had 5 primary clauses including informed consent, spousal notification, parental notification, a definition of “medical emergency” for the purposes of the life of the mother exception, and reporting requirements. The Supreme Court in this issued an odd ruling where only a small portion was joined by a majority of the judges therefore a plurality opinion of 3 judges became controlling. This opinion struck down the spousal notification requirement while affirming the core holding in Roe v. Wade and replacing the trimester paradigm with one based on fetal viability.
Since 1992, medical technology has improved considerably and more than half of premature babies born at 23 weeks survive. Some states have used this fact to enact new restrictions such as Ohio’s Heartbeat Bill which passed in 2019, but was enjoined from taking effect via federal court citing Roe and Casey. Fetal heartbeat can often be heard at 6 weeks, much earlier than what is generally considered viable. Many legal challenges attempting to overturn Roe were undertook over the past 30 years, but the Supreme Court generally declined to hear them and lower courts are bound by precedent to follow the Supreme Court’s rulings therefore the precarious and rather contentious status quo remained.
The Dobbs Decision
Back to the present. The Mississippi law at issue in Dobbs generally banned abortion after week 15 of pregnancy. Given that this is before the line of viability, lower courts struck down the law. Mississippi appealed to the Supreme Court arguing that the Constitution does not include a right to privacy and explicitly asked to overturn Roe and Casey. 5 members of the Supreme Court agreed and a 6th (Chief Justice Roberts) concurred with regards to the Mississippi law, but would not overturn Roe and Casey.
You may be wondering how there is controversy over a right to privacy in the Constitution. This is the fundamental problem. Neither the Constitution, nor the Amendments, mention a right to privacy. So how did the Roe court assert this right existed? It starts with a concept called substantive due process.
The Fourteenth Amendment was among several passed after the civil war and it was targeted around regularizing treatment of black slaves (they should have been used against Jim Crow laws, but that’s an essay for another day) after the way. Here is the relevant text:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The bold is my emphasis. The doctrine of substantive due process revolves around interpretation of this clause. What does it mean to deprive someone of liberty? Clearly this doesn’t mean that a person is free to do anything they want at any time otherwise why have a Constitution or laws. A right to liberty can be constrained by the impact of it’s exercise in others.
You may recall that our founders were believers in natural laws and that certain rights are held by all individuals and are inalienable. The framers didn’t include these in the Constitution originally as they were considered self-evident, however they compromised in making explicit the rights contained in our Bill of Rights. These rights were critically important, but they certainly weren’t the only natural rights endowed by our Creator.
The substantive due process doctrine is used to answer the question I posed above. It uses history to determine if something at issue is a generally accepted right and then uses the Fourteenth Amendment to ensure it’s protection. This concept was at the core of Roe - the right to abortion was a subset of the right to privacy.
The problem in the case of abortion is that the substantive due process doctrine was used to justify Roe except that the history of our country does not recognize a general right to abortion (most states had banned it entirely through most of their history). To some extent, the opinion contradicts itself and many constitutional scholars think it was poorly reasoned. Justice Alito wrote the opinion for the majority who essentially agreed with this rationale and therefore struck down Roe.
What Does the Ruling Mean?
Now that Roe has been invalidated, we return to the pre-1970 situation where states can make their own rules. It doesn’t mean that abortion is now banned nationwide like I’ve seen some people assert. It also doesn’t mean that birth control is or will be outlawed.
Current laws will be maintained until their legislature decides to change them. The political fight over abortion now occurs at the state level.
Congress will likely try to pass a law preempting state law, but it will fail with a GOP filibuster and would likely be found unconstitutional anyways.
Some states had trigger laws in place where additional restrictions on abortion would take effect if Roe was struck down. Missouri is a good example as they now ban all abortions outside of a medical emergency.
Other states had injunctions against bills that will be dissolved. In Ohio, this resulted in the Heartbeat Bill taking effect.
Justice Kavanaugh made clear in his concurring opinion in Dobbs that the Constitutional provisions regarding interstate travel prevent states from banning out-of-state abortions. It’s unlikely a state will test that out, but possible nonetheless.
So abortion laws will change and become more restrictive (similar in many ways to Europe), but what I really see people getting worked up about is fears of birth control bans (and/or access to women’s health services), interracial marriage bans, homosexual sex bans and more. I think these fears are unfounded, but perception is reality and they need to be addressed. Let’s show some empathy to those who are scared. As a Republican, I think it’s in the interest of the party to go on record and allay these fears.
Roe wasn’t the only decision based on substantive due process and a right to privacy. If Roe was wrongly decided, it’s possible the Court could find that other cases were wrongly decided as well. In fact, Justice Thomas explicitly said that in his concurring opinion the court should revisit Griswold. Many of those are cultural flash points:
Griswold v. Connecticut - struck down a law banning contraceptives to married couples
Loving v. Virginia - struck down an anti-miscegenation law attempting to prevent interracial marriage
Lawrence v. Texas - struck down laws banning sodomy (same-sex sexual contact)
Obergfell v. Hodges - struck down laws banning same-sex marriage
For any of these to be revisited, a state would have to pass a law contradicting these rulings and litigation would need to make it to the Supreme Court similar to what happened with Dobbs. For the first two cases listed, there is no constituency in either party to advocate for these positions and zero chance that a state would attempt to pass these laws. For Lawrence, I could see some GOP support for anti-sodomy laws in a few states, but it’s a distinct minority. Only in Obergfell do I see substantial GOP support for same-sex marriage bans, but that is no longer a majority and is declining over time.
I think there is very low probability that any of these are overturned, but in the event that they are, I would not support laws changing these positions. In fact, I would go further and propose a Constitutional Amendment guaranteeing a right to bodily autonomy that would include a right to privacy. At this point in our history with the ability for ubiquitous technological surveillance, it is important that privacy protections are not reliant on interpretations of the Constitution that could be changed. It should be written in plain text for all to see and understand. This amendment would need to be well written, but it’s a solution that should be considered.
The Abortion Issue
Abortion is a contentious issue specifically because it involves conflicting rights - the rights of the mother to bodily autonomy conflict with the rights of the fetus to live as it grows. While some in the debate believe that life begins at the moment of conception and others argue that it begins at birth, the overwhelming majority of the country falls somewhere in between. They recognize that there is a enormous qualitative difference between 2 cells immediately post-conception and a fully formed human halfway down the birth canal. We mourn the death of the latter, but in many cases, never know the former even exists if the fertilized egg fails to implant.
Resolving a conflict in rights is not the role of the courts. Their job is to interpret the Constitution and the popularity of the result isn’t relevant. The Supreme Court is insulated from the political process via lifetime appointments precisely for that reason. Yes, the Court is anti-majoritarian and anti-democratic. The founders specifically created the institution for that reason. Some rights should not be subject to the fickle whims of majorities. However, if those whims are not fickle, a majority can pass amendments to change the Constitution.
The Court is not designed to solve these questions as they are inherently political. It is up to the people, through their legislatures to solve. I personally believe that life begins at conception, but I do not agree that we should criminalize abortions immediately. I think the relevant standard should be viability and the ability to feel pain and that given the progress of medical care, we should err greatly on the side of caution. That puts my personal preference as a ban after the first trimester with exceptions for the life and safety of the mother. Which incidentally is the plurality opinion of Americans who coalesce around that option even while referring to themselves as pro-life or pro-choice.
Edit: I clicked publish a moment too soon. Even though I would personally only ban abortions after the first trimester, I do believe we should work hard to make them as rare as possible. That means support for adoption, pregnancy care, education, access to birth control and more.