By PRFSU Writers 2023-2024 Hannah Lee
For the last 50 years, The Supreme Court has consistently maintained that abortion is a constitutionally protected right. On June 24th, 2022, the Supreme Court made a controversial decision to overturn the landmark decision in Roe v. Wade, which had previously recognized the right to privacy and to obtain an abortion. This right was handed over to the states in the 2022 decision, Dobbs v. Jackson Women’s Health Organization, which found that there is no constitutional right to abortion. The Court found that this right is neither encapsulated in the nation’s history nor implemented in suggestive rights, which is simply false. The Court’s decision undermines Due Process and constitutional integrity, and several legal questions have been raised since this decision. Some of which include several constitutional challenges on Due Process, liberty rights, and the integrity of the Court. Some even ponder if the Court has abandoned its duty to protect fundamental rights. The decision raised solemn concerns for other rights coalesced in the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment guarantees the right to be free from arbitrary government action. Section I of the Fourteenth Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without Due Process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has interpreted the Due Process Clause as protecting certain substantive rights, including the right to privacy, where the right to abortion falls. Instead of a right to a procedure to enforce that right, defined by procedural law, substantive rights involve a right to the essence of being human. Previously, the right to privacy in the context of Due Process was interpreted to include a woman’s right to make decisions about her own body, such as having or not having an abortion. In Roe v. Wade, The Supreme Court reaffirmed that the right to an abortion was protected in the 14th Amendment’s Due Process Clause. The Court held in Roe that the right to personal privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (Roe v. Wade, 1973). After Roe, in Planned Parenthood v. Casey, the Court held that state laws that place an “undue burden” on a woman’s ability to obtain an abortion before the fetus is viable are unconstitutional. The challenge in Dobbs is based on the argument that the 15-week ban places an undue burden on a woman’s right to obtain an abortion; therefore, it infringes upon the Due Process Clause by violating her constitutional right to privacy.
In his argument in the Dobbs decision, Justice Samuel Alito turned to history to determine if the right to an abortion was protected under the Fourteenth Amendment right not to be deprived of liberty without due process of law. He used outdated 19th-century state statutes to conclude that the right to abortion was not constitutionally protected because it is not explicitly stated in the Constitution nor in our nation’s history. The statute Justice Alito relied on was passed before women had the right to vote. Alito’s majority opinion uses a narrow historical analysis of when women were severely underrepresented in government to discredit this constitutional right. Further, the majority opinion is inconsistent with previous precedents that hold certain enumerated fundamental rights as constitutional and protected under the Fourteenth Amendment. For example, the right to marriage is not explicitly spelled out in the Constitution, however, the Court has affirmed that it is a constitutional right protected by the Fourteenth Amendment. Using the historical legal reasoning behind Dobbs, the Court can erode other rights historically protected under the 14th Amendment. For example, the freedom to access and use contraceptives was not protected until 1965, the right to interracial marriage was not a safeguarded part of the right to marry until 1967, sexual intimacy between consenting adults in private was not protected until 2003, and the right to gay marriage was not vindicated until 2015.
Nearly 200 organizations around the world including health practitioners and human rights experts have called the Court’s reversal of Roe an injustice. The dissenting opinion asserts that the reversal of Roe will result in “the curtailment of women’s rights and their status as free and equal citizens,” which directly violates the substantive due process clause, which protects individuals from arbitrary government action. The Fourteenth Amendment no longer protects the right to an abortion, and the Court’s majority opinion has made it clear that they believe it is anything but a right. After the Dobbs’ decision, many complex legal issues have been raised such as the legitimacy of other rights protected under the Due Process Clause. The legitimacy of the decision is also being heavily questioned by several state legislatures, abortion providers, and lobby groups. The Dobbs’ opinion articulates a reason for overruling Roe but then disregards the other rights that are protected using the same reason that has protected Roe for so many years. In years to come, we will see how this momentous decision shapes our country and its political landscape.
References
Roe v. Wade, 410 US 113-178. Supreme Court of the United States. 1973.
Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, reversed and remanded. Supreme Court of the United States, 2022
Duignan, Brian. “Dobbs v. Jackson Women’s Health Organization”. Encyclopedia Britannica, 5 Aug. 2022, https://www.britannica.com/topic/Dobbs-v-Jackson-Womens-Health-Organization.
Felix, Mabel. “Legal Challenges to State Abortion Bans Since the Dobbs Decision” KFF, Jan 20, 2023. https://www.kff.org/womens-health-policy/issue-brief/legal-challenges-to-state-abortion-bans-since-the-dobbs-decision/
Lithwick, Dahlia and Siegel, Neil. “The Lawlessness of the Dobbs Decision” Slate, Jun 27, 2022
https://slate.com/news-and-politics/2022/06/dobbs-decision-glucksberg-test-lawlessness.html