As everyone is no doubt aware, the Supreme Court has announced its decision last Friday in the case of Dobbs v. Jackson’s Women’s Health Organization. The decision effectively overturns the landmark case Roe v. Wade which established a constitutional right to privacy and by extension, abortion. Although the decision eliminates the right to an abortion, it does not ban abortions. It delegates that choice to the states themselves. The 203 page opinion and its syllabus can be found HERE
Please note none of these points are indicative of the views of the author or of CIMA Law Group. The following are the key points that led Justice Alito and the five other conservative justices to their decision:
The Constitution never explicitly mentions or defines any right to an abortion
Justice Alito argues that the right to an abortion is based loosely on a right to privacy which is also loosely based on five different amendments. Those amendments being the first, fourth, fifth, ninth, and fourteenth. This, in the court’s opinion, is a gross overreach of Judicial power to decide on an issue that is never explicitly or implicitly stated in the constitution
The right is not deeply rooted in the nation’s history
In this section, the justices define that they have the power to decide whether laws follow the Constitution, even if not explicitly stated, only if it has become “common law” or essential to the components of “ordained liberty”. After assessing that at the time of Roe v. Wade’s decision, not only was it not common law but the complete opposite of what most states had. They find it an overreach of judicial authority to decide something so controversial that it cannot be upheld on constitutional grounds
The only reason that Roe. v. Wade has stuck around this long is due to the practice of “Stare decisis”
“Stare decisis” is Latin for “to stand by things decided”. Basically, all the decisions made after Roe v. Wade was decided did not address the abortion matter again, rather it assumed that it was correct and that how the last fifty years have been. Justice Alito is saying that it is possible for the court to change its mind if it had made an error just like it had made in Plessy v. Furgenson.
The time set by the decision in Roe v. Wade was arbitrary and not backed by law
In Roe v. Wade, the justices did not completely allow for the discharge of abortions. Instead, they said that abortions could not be restricted in the first trimester of pregnancy but, could be restricted later on. It is worth noting that this was not backed by up-to-date science and common law at the time dictated that abortion was only illegal after “quickening”, the feeling of moment by the fetus in the womb by the mother. Because this decision held that some abortion could be prohibited weakened the argument for Roe in the first place. The Justices noted that the listing and outlining of what can and cannot be done should remain the place for the legislative branch and not the judicial. If there is to be a cut off or limitation in the abortion right, the court argues that they should be decided by the states themselves rather than the courts.
This opinion is strictly to be interpreted as applying to abortion
There were concerns, which Justice Alito addressed, that if the right to an abortion was overturned, other rights subsequently owing to the due process clause of the 14th amendment, which Casey and Roe do in part use, would be in jeopardy. The Justice makes it clear that this is not the case and his opinion is referring to strictly abortion and nothing more.
This blog post is part of the CIMA Law Group blog. If you are located in Arizona and are seeking legal services, CIMA Law Group specializes in Immigration Law, Criminal Defense, Personal Injury, and Government Relations.
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