By Dave Andrusko
A month after the Supreme Court handed down its historic Dobbs v. Jackson Women’s Health Organization overturning Roe and Casey, the High Court “officially transmitted its judgment to the lower courts on Tuesday, a move that will likely trigger more state abortion restrictions to go into effect,” CNN’s Supreme Court reporter Ariane de Vogue reported . “Supreme Court rules state that after an opinion is rendered, the court sends out a certified copy of the judgment prepared and signed by the court’s clerk. The process usually takes about a month.”
The opinion, written by Justice Samuel Alito, “reversed nearly 50 years of precedent and forever changed the landscape of reproductive health,” de Vogue wrote. “Going forward, abortion rights will be determined by the states unless Congress acts.”
As important as the decision was, not many of us are going to plow through all 213 pages of the Supreme Court decision. But Justice Alito’s painstaking rebuttal to the three dissenters is very much worth revisiting.
In just a few pages, Justice Alito polishes off the dissents of justices Beyer, Sotomayor, and Kagan. He is largely reiterating points he had made in the draft opinion leaked to Politico. With all that time, it would have helped if the three dissenters had engaged them directly.
Point #1. No foundation.
“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a“ ‘deeply rooted’” one, “‘in this Nation’s history and tradition.’” The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise”
Point #2, Mystery of Life passage, Part Two, meets bad history. In the 1992 Casey decision, the plurality invoked gibberish so untettered to the Constitution it was reminiscent of Justice Blackmun’s original Roe v. Wade decision. As Alito writes,
The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”
So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” There are occasions when past decisions should be overruled, and as we will explain, this is one of them.
Point#3. Failure to realize that abortion is fundamentally different and that states have a legitimate interest in “potential life.”
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance. That view is evident throughout the dissent.
Point #4. Dobbs resembles other decisions now seen as “infamous.”
“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views.”
The Mississippi law at the heart of Dobbs was defended brilliantly by Attorney General Lynn Fitch. The following is her statement on the Court’s historic decision.
Today marks a new era in American history — and a great day for the American people. Roe v Wade is now behind us, consigned to the list of infamous cases that collapsed under the weight of their errors. This decision is a victory not only for women and children, but for the Court itself. I commend the Court for restoring constitutional principle and returning this important issue to the American people.
Now, our work to empower women and promote life truly begins. The Court has let loose its hold on abortion policymaking and given it back to the people. The task now falls to us to advocate for the laws that empower women – laws that promote fairness in child support and enhance enforcement of it, laws for childcare and workplace policies that support families, and laws that improve foster care and adoption.
We must renew our commitment to weaving a safety net that helps women in challenging circumstances and gives their children life and hope. This is about more than the fundamentals of prenatal vitamins and diapers; it is about helping to connect them to opportunities for education and job training to support their families. And always, it is about love and respect for them through whatever struggles they face. This is what it means to both empower women and promote life.
I am grateful to the Court for this opportunity and even more grateful to the millions of women and men across our nation who will lead us into this new post-Roe world. I have been proud to stand with you in the fight to get to this day and I will be proud to stand with you as we build a new framework for the life movement.