Justice Alito ruled in Dobbs v Jackson Women’s Health (2022) that women in the U.S. no longer have a limited federal Constitutional right to an abortion. In a 6-3 decision, a right-wing majority abandoned the rule of law and overturned 49 years of precedent contained in Roe v Wade (1973), Planned Parenthood v Casey (1992), and 20 other lesser cases.
Abortion law largely concerns the following language from the 14th Amendment: “Nor shall any state deprive any ‘person’ of life, liberty or property without due process of law.” One persistent Constitutional question has been: What did the framers of the 14th Amendment intend when they used the word “person”? The other issue has been: Does the word “liberty” include a qualified right to abortion?
First, let’s address the word “person.” Just who is a “person” entitled to Constitutional protection? When the sperm enters the egg at conception, is that a “person?” In the first and second months of pregnancy, is a one-inch embryo a “person?” From the third month to about the fifth or sixth, while the fetus is still developing, but before it is capable of independent life outside the womb, is that a “person”?
The role of a Supreme Court Justice is not to write law by interjecting their personal religious beliefs as to when life begins, but rather to just read the Constitution and to interpret what it means.
In Roe v Wade (1973), Justice Blackmun stated: “No case could be cited that holds that a fetus is a ‘person’ within the meaning of the 14th Amendment.”“The word ‘person’ as used in the 14th Amendment does not include the unborn.” “The unborn have never been recognized in the law as persons in the whole sense.” Blackmun, speaking for seven Justices, simply read the Constitution and interpreted the meaning of “person.”
Some conservative Justices pride themselves on being outspoken “strict constructionists.” They criticize those who go beyond the original intent of the language. Yet here, in the recent Dobbs (2022) case, an extreme right-wing majority made a mockery of their own judicial approach. Does anyone seriously think that in 1868 the framers of the 14th intended the word “person” to include an embryo or a fetus? That’s an absurd idea. They clearly had no such intent. A “person” to them was one who had already been born.
The Roe Court also addressed the word “liberty.” They found women have a qualified Constitution personal liberty right to abort a fetus, if carried out before viability. “Liberty” gave them the right to control their own bodies, until that point when the fetus became viable, or in other words, capable of life outside the womb.
The Roe Court also cited a Constitutional right to personal privacy, by referring in part to the language of the 9th Amendment, which states: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” This means that the specific inclusion of certain rights in the Constitution, does not exclude others, simply because they not spelled out.
In Roe, Blackmun ruled: “This right of privacy, whether it be founded in the 14th Amendment concept of personal liberty…as we feel it is, or, as the District Court determined, in the 9th Amendment reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
It should be noted that Roe never sanctioned “abortion on demand” as some right-wing pundits often propagandized. Blackmun wrote: “Some argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.” Blackmun added: “At some point, the state interests as to protection of health, medical standards and prenatal life, become dominant. We agree with this approach.” “The privacy right involved therefore cannot be said to be absolute.”
Blackmun ruled: “With respect to the state’s important and legitimate interest in potential life, the compelling point is at viability. This is so, because the fetus then presumably has the capacity of meaningful life outside the mother’s womb.” “If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion.”
In the recent Dobbs (2022) case, Alito set out to destroy Roe, Casey, and all precedent supporting abortion rights. At least three times he made the comment: “the Constitution makes no mention of abortion.” Yes, that’s true, Mr. Alito, but, so what? The Constitution doesn’t contain the phrase “unborn human being” either, and yet you used those words by lifting them out of the Mississippi statute to make abortion illegal again.
On the topic of word games, the Founders knew they could not possibly spell out every single conceivable right, and so, as the Dobbs dissent put it, they defined them in general terms to permit future evolution. The Founders knew the world would change. Let me give you two examples, one involving “television,” and the other concerning “airplanes.”
Assume hypothetically New York banned Fox from broadcasting. Fox would sue under the “freedom of the press” contained in the 1st Amendment. If NY argued Fox is not a “newspaper” and the word “television” is not in the Constitution, would NY win? Of course not. The word “television” does not need to be in the Constitution. The Court would find that the Framers intended to protect all forms of speech.
If an appropriations bill allocated funds to the Air Force, and a taxpayer challenged the law arguing “Air Force” is not in the Constitution, would he win? Of course not. While the Constitution expressly names an “Army” and a “Navy,” any rational Court would find a broad intent to support a military, despite the absence of the specific words “Air Force.”
What the Constitution clearly contains is the word “liberty.” It also says rights exist, even if not explicitly enumerated. It would have been easy for Alito and his crowd to simply follow precedent and reaffirm the qualified liberty right to abort. So why didn’t they just do that? Judicial Realism tells us Roe was overturned, because the composition of the Court now includes Justices who place their own personal religious views above the law.
Alito used history to try to justify his ruling. He went back to the 13th Century, to the days of the Inquisition, long before the U.S. Constitution was adopted. He noted abortion was a crime after “quickening” under the common law. Yet Alito ignored more recent precedent from Union Pacific v Botsford (1891), where Justice Gray (7-2) wrote: “No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
Alito also argued that when the 14th was adopted in 1868, abortion was illegal in 26 states, and lawful in only 11, and that 30 states still banned it at the time of Roe (1973). One fundamental flaw in Alito’s approach is that he is not citing the U.S. Constitution when he refers to these old state laws.
The correct approach requires that a line be drawn between the period when women were legally 2nd class citizens, and that point in the 20th Century when they finally were recognized on paper at least as equal citizens capable of influencing lawmaking.
By analogy, let’s consider Constitutional Law as to blacks. No competent Justice today would go back before the Civil War to cite old state laws condoning slavery. The 13th Amendment abolished slavery in 1865, the 14th added Equal Protection in 1868, and the 15th Amendment gave blacks the vote in 1870. For blacks, their history begins in 1865.
For women, they first obtained the vote in 1920, under the 19th Amendment, 50 years after blacks. But full recognition was slow. President Kennedy approved of an Equal Pay Act in 1963 and President Johnson banned discrimination against women in the Civil Rights Act of 1964. The Supreme Court first banned sex discrimination under the Equal Protection Clause in 1971. Family Planning Services (1970) and Equal Opportunity in Education (1972) (Title IX) also became law. President Carter ended the 70s with the Pregnancy Discrimination Act (1978). As more women finally gained public offices, Sandra Day O’Connor became the 1st female Justice of the Supreme Court in 1981.
The problem with citing old state laws is that they were written by men, who inherently shared a common male perspective. Woman had no legal existence separate from their husbands or fathers. They had no ability to participate in legislative debates about abortion. As a result, it is fundamentally unfair to rely on laws passed long ago. It is highly unlikely many of them would have been enacted, if women held office.
Alito created a mess by sending the abortion issue back to the states. Now, instead of one national fight, there will be 50 disputes, all resulting in waves of litigation. And it is important to remember that “rights” belong to individuals; they cannot be taken away by legislative majorities. If a village has 100 people, one person has an absolute Constitutional right to speak, even if he completely disagrees with the other 99.
Obviously, Alito and his followers do not accept a broad definition of personal “liberty” and under this Court, from the very moment of fertilization, a woman now has no rights.
The dissent correctly stated that women have a liberty right to make their own choices. Such choices as to pregnancy and childbirth belong to the individual, not the government.
In Dobbs, Alito was only correct about one thing. He said there are occasions when past decisions should be overturned. Ironically, the opinion he just wrote is one of them.