Dobbs and the Shaky Foundations of Roe


December 3, 2021

In the oral arguments in the much-anticipated Mississippi abortion case Dobbs v. Jackson Women’s Health Organization heard in the Supreme Court Wednesday, there was little discussion of the details of abortion. Instead, the status of the Court’s major precedents and the Court’s power and influence in American life were the main subjects.

The immediate subject of the case is a 2018 Mississippi statute that outlaws abortion after 15 weeks gestation “except in a medical emergency or in the case of a severe fetal abnormality.”  The statute requires abortionists to determine and file a report concerning the “probable gestational age” of the “unborn human being.” Citing the two controlling Supreme Court decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the federal district court and the Fifth Circuit Court of Appeals overturned the statute and ruled that because those two case precedents allowed all abortions prior to “viability”—the point at which a baby is able to survive outside the womb, said to be about 23-weeks gestation—the Mississippi prohibition of pre-viable abortions at 15 weeks gestation was unconstitutional. 

The Biden Justice Department, even though not a party to the case, was certified for oral argument by the Supreme Court. In its filed brief, the Justice Department made the remarkable (but see below) argument that the rule of precedence, stare decisis, required the Court to adhere to Roe and Casey “even if the Court now believed they were wrongly decided.” By that standard, of course, the Court could never have issued the 1954 Brown v. Board of Education decision overturning the 1896 “separate but equal” case of Plessy v. Ferguson.

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In its brief filed in the Court, the state of Mississippi argued that the Court’s abortion precedents are “egregiously wrong, unworkable, damaging, and outmoded.” That state said that Roe was in error because the Constitution has no “general right of privacy” but instead, “protects aspects of privacy through specific textual prohibitions on government action.” And more specifically with reference to the actual act of abortion, no other privacy interest involves “the purposeful termination of a potential life.”

However, what actually happened at oral arguments was an avoidance of the overall constitutional basis of Roe and the Roe-amending Casey. Mississippi did not want to go into the origins of Roe in the Court’s Griswold (1965) and Eisenstadt (1972) contraception decisions because its purpose was to concentrate on the uniqueness of abortion. And despite being directly asked by two justices Wednesday whether the state’s challenge to Roe also included challenges to the Court’s contraceptive and same-sex-marriage decisions, the state explicitly stated that it was not doing so.

Further, even though both parties on the other side, a Mississippi abortion clinic and the Biden administration’s Department of Justice, defended the constitutionality of both Roe and Casey in their filed briefs, neither defended those two cases in their oral arguments by arguing grand and sweeping constitutional principles. Instead, they spoke of the social and political basis of Roe and Casey and the social and political consequences of overturning those cases. Their predicament can be understood in two ways. 

First, the invented abortion right in Roe has no basis in the text or principles of the Constitution. It is impossible to defend. Second, and more pertinent to oral argument, the Court itself had confusingly splintered the constitutional right to abortion between two cases nineteen years apart: Roe with its three “trimesters” abortion structure, and Casey holding that the “trimester framework is rejected” and substituting “personal liberty” and “viability” as the new basis of the abortion right. In other words, the dilemma of the Biden administration and the Mississippi abortion clinic was to defend the Court’s abortion “precedents” while downplaying the fact that the Court had itself previously undermined the precedent of Roe.

Better to defend Roe/Casey as social and political precedents. And that was what made up most of their presentations Wednesday.

Counsel for the Mississippi abortion clinic dealt with this problem by maintaining that Roe/Casey were precedents with “an especially high bar.” And the lawyer for the Biden administration said that the Court had “never revoked a right that is so fundamental.” So, unlike other precedents of the Court, even major ones, Roe and Casey are more than decisive. The Biden administration maintained that abortion was a “central component of women’s liberty” and was “central to their ability to participate fully and equally in society.” The lawyer for the Mississippi abortion clinic argued that eliminating the right to abortion would “propel women backwards,” for “two generations of women have now relied on this right.”

Joining in this tactic, and emphasizing it even more, were Justices Breyer, Sotomayor, and Kagan. At times, all three abandoned the give-and-take of colloquy for lecturing. Breyer pointed out that the Court in Casey had already reconsidered Roe and come to the conclusion that overturning Roe “under pressure” would lead to a “loss of confidence in the judiciary” and “the ability of the Court to exercise the judicial power.” 

Justice Sotomayor referred to the dependence of poor women on abortion, stated that Mississippi’s argument about human life was “a religious view,” criticized Mississippi lawmakers for passing a new abortion law just because there were “new justices on the Supreme Court,” and asked, “how will the Court survive” if people think we decide cases politically. She made the point that abortion was needed when contraception fails.

Likewise, Justice Kagan was even more vehement in her assertion that the possibility that Roe and Casey were wrongly decided was not the point. She averred that there has to be “a strong justification in a case like this beyond the fact that you think the case is wrong.” She was expansively philosophical, contending that the abortion right is about “the autonomy and the freedom and the dignity of women to pursue their lives as they wish” and is “part of the fabric of women’s existence in this country.” 

Justice Kavanaugh listed major precedents of the past 100 years that the Court has overturned and asked the lawyer for the abortion clinic for her response. That lawyer answered that “the view that a previous precedent is wrong” has never been enough to overrule it, for the Court has regularly required an additional “special justification.” Particularly with respect to the abortion right, she maintained that there is what amounts to a special justification on the opposite side: Roe is now almost 50 years old, and women must be “able to make this fundamental decision for themselves about their bodies, lives, and health.”

To Justice Kavanaugh’s list of reversed precedents, Justice Sotomayor retorted that almost all of those decisions dealt with the Court expanding individual rights. She was thereby asserting that the proper purpose of the Court in general is to prefer the creation and extension of individual rights over all other constitutional principles concerning powers and structures of government, state and federal. She is certainly right that is what the Court did in Roe.  

Concerning the possible politicization of decision-making and whether it can appear that the Court is ruling under public pressure, Justice Barrett seemed to hold that public support of its decisions is a legitimate concern of the Court. She referred to the fact that the Casey opinion had referred to and extensively discussed public opposition to Roe before upholding it. To that observation of Barrett, Chief Justice Roberts added his criticism of Casey that in reexamining Roe, Casey had essentially reached the “paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent.” Thus, in Dobbs, the Biden administration and the abortion clinic were left to argue vehemently against the kind of reexamination of the abortion right that the Court itself had done in Casey.

In Casey, the Supreme Court said that it must uphold Roe in order to avert “a loss of confidence in the Judiciary.” Ironically, the Court not only failed in that purpose but caused an opposite result. In the 29 years since Casey, the Court has had to hand down twelve more decisions dealing with attempts by the states to restrict abortion. Now, with the new Mississippi and Texas abortion statutes, those attempts are becoming ever more forcible. This week, in Dobbs, two ardent abortion advocates, the Biden administration and an abortion clinic, together with three Supreme Court justices, did the best that they could with the detritus of Roe and Casey. They avoided the Constitution and defended Roe/Casey with social, political, and philosophical arguments.

[Photo Credit: Chip Somodevilla/Getty Images]


  • Thomas Ascik

    Thomas Ascik is a retired federal prosecutor. He writes from North Carolina. His writing has appeared in a variety of publications including Catholic World Report, The Federalist, and The Imaginative Conservative.

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