This is almost assuredly the blockbuster case of this decade. It’s the one everyone is talking about, at least. So let’s dig in.
Y’all remember Roe v. Wade, right? Well, once Donald Trump had secured a 6:3 conservative majority in SCOTUS, largely on the promise of Roe v. Wade getting overturned if he was able to do so, Dobbs ended up being the case to do it.
Many Republican-majority states knew, if they started passing laws that blatantly violated Roe’s precedent, and the newly Republican-appointed super-majority were willing to consider overturning Roe, these laws which would have been easily struck down previously, would now meandered their way to SCOTUS. And so this one did, and SCOTUS happily granted certiori (agreed to hear it.)
This particular law was a 2018 Mississippi law called the “Gestational Age Act.” It basically told women that if they were going to terminate their pregnancy, they need to do it in the first fifteen weeks.
However, in Planned Parenthood v. Casey, a case in which SCOTUS upheld Roe, but modified it, they replaced the trimester scheme in Roe, and instead replaced it with one test—whether or not the fetus was viable.
So the petitioners, Jackson Women’s Health Organization (JWHO), were like, “Woah, you country bumpkin mother fuckers, Casey said we have until viability to make such a call. And fifteen weeks is a country fucking mile from viability. So we’ll see your asses in court.”
As usual, a lower court ruled, and told Mississippi that they were clearly out of line, that no evidence was provided to show 15 weeks met the “viability” requirement, and therefore violated the Casey precedent.
Counsel for Dobbs, started off by arguing:
Roe versus Wade and Planned Parenthood versus Casey haunt our country.
They have no basis in the Constitution.
They have no home in our history or traditions.
Nowhere else does this Court recognize a right to end a human life~Scott G. Stewart
In citing the previous court in Casey, Justice Breyer pretty much let his position be known by forcefully pointing out the reasoning of a judicial philosophy called stare decisis (standing by what’s been decided previously). Speaking to Counsel Stewart, he asked:
It is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure. “Only the most convincing justification can show that a later decision overruling,” if that’s what we did, “was anything but a surrender to political pressures or new members.”
What do you say to that?~Justice Breyer
He was sending a message to the six conservative justices, that overturning Roe should not be done to appease the presidents that appointed them, the party that brought them to power, or even the will of the people. That the decision should be based on logic—overturning a previous ruling should only be done, because the previous court, working with less information than the current court has, got their decision wrong.
Justice Thomas, questioning counsel for JWHO, asked a question, that I have to be honest, even puts me in a box I didn’t think I could be put in. My argument, as well as the argument from JWHO, is that this is a bodily autonomy issue, an extension of the 4th amendment’s right to be secure in your own person, or the 14th amendment, which guarantees life, liberty, and property rights.
I am trying to look at the issue of bodily autonomy and whether or not she has a right also to bodily autonomy in the case of ingesting an illegal substance and causing harm to a pre-viability fetus.~Justice Clarence Thomas
This is fucking tough to justify, and I honestly don’t know if I can. If a woman has a right to bodily autonomy that would allow her to abort a fetus, does she have the right to ingest a substance, such as drugs or alcohol, that would cause that fetus to be stillborn, or have severe birth defects?
I suppose if I were arguing for the pro-choice side, I might have had to suggest that an abortion terminates the fetus before it becomes a person with rights under the law, so it never becomes a person with rights under the law. But using drugs or alcohol, assuming the fetus comes to term, violates that person’s rights to life in perpetuity, because if it does become a person, it will be forever victimized by the mother’s actions until the person dies.
Counsel for WHO, either being less creative than me, or smarter than me, dodged the issue almost entirely, rejecting it as not germane to her argument, and focused instead on adherence to the philosophy of stare decisis , and the viability precedent. I don’t think failing to have an answer for this issue helped her.
Justice Barrett, pointing out that Roe and Casey both seemed to focus on the burdens of motherhood, as to why it was necessary for a woman to be able to exercise the right to an abortion, pushed counsel that because of this, it shouldn’t be problematic for the women to bring the child to term, then relinquish it for adoption.
Counsel Rikelman responded to this question with:
Pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.
And, in particular, in Mississippi, those risks are alarmingly high.
It’s 75 times more dangerous to give birth in Mississippi than it — than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of color.~Julie Rikelman
When counsel for The United States (The Biden Admin), an amici in this case (Amici’s are groups that are not part of the suit, but people with a vested interest in the suit, who join with the people filing suit) stepped up to the mic, Justice Thomas, seeming to be as troubled with Alito that Roe guaranteed a right that isn’t in the Constitution, point blank asked,
“What specifically is the right we’re talking about here?”
Counsel Prelogar responded:
Well, Justice Thomas, I think that the Court in those other contexts with respect to those other amendments has had to articulate what the text means and the bounds of the constitutional guarantees, and it’s done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, Fourth Amendment rights. So I don’t think that there is anything unprecedented or anomalous about the right that the Court articulated in Roe and Casey and the way that it implemented that right by defining the scope of the liberty interest by reference to viability and providing that that is the moment when the balance of interests tips and when the state can act to prohibit a woman from getting an abortion based on its interest in protecting the fetal life at that point. It’s the right of a woman prior to viability to control whether to continue with the pregnancy.~Elizabeth Prolegar
Counsel Prolegar was asked by Justice Kagan to talk about “reliance,” which Cornell defines as “A legal concept defining the dependence by one person on another person’s or entity’s statements or actions, particularly where the person acts upon such dependence.” Prolegar’s arguments spoke often of reliance as part of their argument, so Justice Kagan was presumably giving her an opportunity to elaborate on it.
Her response cut right to the bone:
Well, there are multiple reliance interests here, as I think Casey correctly recognized.
Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child.
And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers. And so I think, on a very individual level, there has been profound reliance.
And it’s certainly the case that not every woman in America has needed to exercise this right or has wanted to, but one in four American women have had an abortion, and for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives. And then I think there’s a second dimension to it that Casey also properly recognized, and that’s the societal dimension. That’s the — the understanding of our society, even though this has been a controversial decision, that this is a liberty interest of women.
It’s the case that not everyone agrees with Roe versus Wade, but just about every person in America knows what this Court held, they know how the Court has defined this concept of liberty for women and what control they will have in the situation of an unplanned pregnancy. And for the Court to reverse course now, I think, would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country.
Much to the surprise of those of us who believe in the court being pragmatic, and adherent to stare decisis, the conservative majority did what Trump said they’d do, and overturned Roe v. Wade and Panned Parenthood v. Casey.
In his opinion, Alito went straight to hard-ass mode level expert, and argued that because abortion isn’t mentioned in the Constitution, SCOTUS had no business calling it a right out of thin air.
While I concede the Constitution doesn’t specifically mention abortion, it sure as fuck mentions the right to be secure in your person (4th amendment), and the right to life, liberty, and property in the 14th Amendment. SCOTUS makes decisions all day, where the text isn’t clear, tying the text, to what they believe the text’s intent is, or it’s logical conclusion. They make a shit ton of decisions, on the basis of constitutional merit, on things that aren’t specifically mentioned in the constitution, but that the constitution almost assuredly would have meant in a given scenario.
Being secure in one’s person, could and should easily include that government doesn’t own your own body, you do. And what you do to it, is your right. As such, the 4th amendment should confer your right to have a medical procedure done on yourself, including but not limited to, a fucking abortion. Although I suppose I can concede that maybe there’s some wiggle room for outlawing elective abortions, where the woman just doesn’t want to be pregnant, versus a prescribed abortion, where the doctor is suggesting it to save the mother’s life. But that’s an argument for another day, I suppose.
Being an Average Joe, and not a Harvard or Yale grad, I of course respect all nine justices, and disagree with Alito and company humbly. But three other people (the minority dissent) who are qualified agree with me, Alito’s reasoning is whack. He and the majority used confirmation bias to come to the conclusion they wanted on this issue, and that’s sad.
Hear oral arguments or read about the cases below.