Supreme Court of The United States: On Friday, the SCOTUS decisively overruled not only the landmark ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted the American women a constitutional right to abortion, but also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11, which upheld the Roe ruling. It was held that the Constitution of United States does not confer any right vis-à-vis abortions. With this decision, the authority to regulate abortion was returned to the people and their elected representatives.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision as catastrophic. In a passionate and scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Lamenting upon the rationale behind the overruling, the Judges stated that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”
The Judges made some crucial observations highlighting their apprehensions and dismay over the majority decision, which are as follows:
- They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey understood the difficulty and divisiveness of the abortion issue and the Bench deciding those cases was aware that Americans have profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.
- The dissenting Judges observed that the majority in the deciding the present issue discarded the afore-stated balance. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”.
“The Mississippi law at issue here bars abortions after the 15th week of pregnancy. But under the majority’s ruling, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life”.
- The dissenting Judges noted that the majority decision would sound a death knell for women who are not financially strong. It was also pointed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
- In very strong words, the Judges pointed that the lone rationale for the majority decision is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering.
“Either the majority does not really believe in its own reasoning. Or if it does, then all rights that have no history stretching back to the mid 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
- “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it”. Questioning the majority’s use of historical approach in the decision, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship… The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.
“The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
- The dissenting Judges observed that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. “It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.
- Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”.
- The Judges questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases, when in the same vein he urged the Court to reconsider decisions like Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6.
“He says, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrule these demonstrably erroneous decisions.” So at least one Justice is planning to use the ticket of today’s decision again and again and again”.
- The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. They noted that by overruling Roe and Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority has abandoned stare decisis, a principle central to the rule of law because “Stare decisis” means to stand by things decided.”
“The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It suggests that the two decisions are hard for courts to implement, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”
- Regarding majority’s view about unworkability of ‘undue burden’ standard set in Casey, the dissenting Judges opined that general standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, this Court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances.
- In the dissenting Judges highlighted that this decision will invite a host of questions about interstate conflicts like –whether a State can bar a woman from travelling to another State to get an abortion etc.
“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “inter- jurisdictional abortion wars.”
The dissenting Judges remarked that, Roe and Casey continue to reflect, the broad trends in American society. It is true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains that Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Therefore, the disruption of overturning Roe and Casey will be profound as well. Pointing out that the Mississippi’s Gestational Age Act, does not have any exception for rape or incest, even for underage women, thus the loss of Roe and Casey would be disastrous for women who will have undergo pregnancies resulting from rape or incest.
Finally the dissenting Judges observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. The decision breached a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it placed in jeopardy other rights, from contraception to same-sex intimacy and marriage; and finally, undermining the Court’s legitimacy.
“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent”.
[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]
Report by Sucheta Sarkar, Editorial Assistant