Friday, June 24 saw an unprecedented shift in the political landscape of the United States with the Supreme Court’s decision in the Dobbs v. Jackson Women’s Health Organization case. The decision overruled both Roe v. Wade and Planned Parenthood v. Casey, revoking the constitutional right to an abortion and opening the door for states and lawmakers to ban the procedure.
The constitutional protection of an abortion was argued under the Fifth and 14th amendments in what is called the due process clause which states that, “nor shall any State deprive any person of life, liberty, or property, without due process of law,” under the 14th amendment.
The decision, which came after a series of decisions which used the clause to establish a right to privacy through the “liberty” portion of the clause (Griswold v. Connecticut, Eisenstadt v. Baird), affirmed the right to an abortion through this right to privacy. The decision also ushered in a discussion on the existence of a right to privacy into the political mainstream, according to University of New Mexico principal lecturer Peter Kierst.
“Roe is a privacy decision. The fundamental holding of Roe is that a woman’s decision about whether or not to remain pregnant, to enter pregnancy, is a matter for her to decide in the privacy of her own conscience in consultation with her doctors (or) whoever she cares to consult with,” Kierst said.
What separates Dobbs from Roe is Dobbs’ scarce mention of privacy, focusing more on whether the Constitution literally affords the right to an abortion, according to Kierst.
“(Dobbs) talks almost exclusively about whether or not there is a right to an abortion. It says, ‘No,’ predicated on the idea that there was no such acknowledged right when the 14th amendment was written in 1866 — that this was not within the intention of the framers of the 14th amendment because, in those days, consensus view was that abortion was unlawful,” Kierst said.
For UNM political science professor Deborah McFarlane, the decision was not grounded in the science of when a pregnancy starts and was an overreach on behalf of the court, with the complete overturning of Roe and Casey being a larger action than necessary to resolve Dobbs.
“People are saying (they are) not aware of any time there’s been a constitutional right and it’s been withdrawn, maybe prohibition. The justices went way beyond what they needed to do to settle the case, to decide the case,” McFarlane said.
The Supreme Court overruling a previous decision brings into question legal precedent and stare decisis (“to stand by things decided” in Latin). In his dissent of Burnet v. Colorado Oil and Gas Co., Justice Louis Brandeis — who was the first justice to propose a right to privacy — acknowledged the importance of stare decisis within the court as “wise policy;” if a previous decision made by a court needs to be reconsidered, it should be done through legislation.
“But in cases involving the federal constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions,” Brandeis wrote.
McFarlane believes precedent comes down to predictability, citing the lower courts’ decisions in Dobbs as examples of retaining precedent.
“Precedent, as I understand it, is trying to say that the same set of facts will have a predictable outcome. This overturns precedent. The justices didn’t even need to take this case because two lower courts already said Mississippi’s law was unconstitutional … (The Supreme Court) threw stare decisis out the window,” McFarlane said.
Kierst referred to stare decisis as the “very bedrock” on which the U.S.’s legal system is built upon and that, while the Supreme Court should still acknowledge when things are wrong (Plessy v. Ferguson), overturning precedent shouldn’t be the first option.
“It is upsetting and destabilizing when they reverse a settled precedent because it undermines public confidence in the rule of law. Generations of women and men have grown up acting and believing as if the right to choose was there's, it was secured. And, suddenly, it’s not. This court and these justices seem much more willing than previous courts and previous justices to overturn precedent,” Kierst said.
The Supreme Court has overruled about 232 cases since its establishment in September 1789, according to Constitution Annotated. While this number may seem high upon first glance, the Supreme Court has released opinions in 1,062 cases since 2007, according to Ballotpedia, around 4 1/2 times higher than the total number of overrulings issued by the Court.
The Dobbs decision showcases a court of judges that is acting not necessarily on the legal precedent, but rather on their own personal opinions, Kierst said. A study from the Pew Research Center found that 84% of adults believe Supreme Court justices do not keep their own personal political views out of the cases they are deciding.
“Some of the justices appear to be so willing to substitute their judgment, their personal judgment, for what the correct law is, for the established precedent that goes back decades. One would think that a certain amount of judicial modesty would be called for,” Kierst said.
The decision also showcases a lack of understanding regarding the definition of liberty, Kierst believes.
“Why should we think that that’s the limitation on human liberty? In 1866, they didn’t think they fully understood the scope of human liberty. In 1776, they didn’t think they fully understood the scope of human liberty. What makes us think, in 2022, that they did (understand) and that their definition of human liberty should be ours?” Kierst said.
The anomaly of the overruling of Roe and Casey calls into question what other factors may be at play in the decision; for McFarlane, gender identity plays a key role in this decision. Currently, the Supreme Court is majority male, multiple of whom have been accused of sexual assault, according to the Huffington Post.
“You know the famous Gloria Steinem quote? ‘If males got pregnant, abortion would be a sacrament’ … A couple of studies interviewing folks — women and leaders in the anti-abortion and pro-choice movements — have really shown this is about the position of women. It isn’t about when life begins,” McFarlane said.
John Scott is the editor-in-chief at the Daily Lobo. He can be contacted at firstname.lastname@example.org or on Twitter @JScott050901