Abortion law: Roe vs Wade and the US constitution
Law and policy commentator David Allen Green looks at how the US Supreme Court introduced a constitutional right to an abortion with Roe vs Wade and then removed that constitutional right with Dobbs
Written and narrated by David Allen Green, produced by Tom Hannen.
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On 23rd of June, 2022 there had been a constitutional right to an abortion in the United States for about 50 years. But the day after, on the 24th of June there was not. An established constitutional right disappeared. The constitutional right to an abortion was removed by the Supreme Court of the United States.
This video is an account of how this happened from the perspective of an English lawyer and commentator with an interest in liberal constitutionalism. What is a constitutional right? A constitutional right is more than a mere legal right. It is a right which is protected because of how a political and legal system is well, constituted. The key is in the word constitution.
If you have a constitutional right, then there are limits to what the government and law makers can do to you, not only in their actions, but also in their passing of laws. You can go to a court and say, the government cannot do that action or those laws should be quashed. And the court should enforce your rights, not because of some abstract theory, but because those rights are fundamentally part of how your society is constituted.
They are legally recognised and enforceable rights, but of the very deepest nature. Where a country has a codified constitution, constitutional rights will often be set out expressly in a key constitutional text. In the United States of America, many constitutional rights are set out in the Bill of Rights, the name given to the first 10 amendments to the Constitution.
And when there is a codified constitution, one obvious way of creating and indeed removing rights is by amending the text of the constitution, you put the right in and/or you take the right out. But constitutional rights are sometimes not spelled out explicitly in the text of a codified constitution. They are instead inferred from the constitution by courts.
The constitutional right to an abortion is not expressly set out in the Constitution of the United States of America. Yet in 1973, the Supreme Court of the United States held there was a constitutional right to an abortion This was in the case of Roe versus Wade. The majority of the court held in that case that state criminal abortion laws like those involved here that's except from criminality only a life saving procedure on the mother's behalf without regard to the stage of her pregnancy and the other interests involved violate the due process clause of the 14th Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.
This was despite the court admitting that the Constitution does not explicitly mention any right of privacy. However, in a line of decisions, the court has recognised that a right of personal privacy or a guarantee of certain areas or zones of privacy does exist under the Constitution. Reviewing previous Supreme Court cases, the court added, the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing.
This right of privacy, whether it be founded in the concept of personal liberty and restrictions upon state action or the reservation of rights to the people is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.
Specific and direct harm, medically diagnosable, even in early pregnancy may be involved. Maternity or additional offspring may force upon the woman a distressful life and future. Psychological harm may be imminent. All these are factors that woman and her responsible physician necessarily will consider in consultation.
And this is how the majority of the Supreme Court in 1973 set out that there was a constitutional right not only to privacy in general but for a woman to have an abortion in particular. As there was not a general right to privacy explicitly set out in the Constitution, the court had regard to how the Bill of Rights protected privacy in specific instances. The First Amendment, the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the concept of liberty guaranteed by the first section of the 14th Amendment.
And so by relying on previous Supreme Court decisions that had protected privacy rights and having regard to how the Constitution valued privacy generally, the court posited that there was both a constitutional right to privacy in general and a constitutional right for a woman to decide whether or not to terminate her pregnancy. This was not a unanimous decision of that court. And even though the Supreme Court in Casey affirmed this decision in 1992, both the general constitutional right to privacy and the specific constitutional right to an abortion, have continued to be contested by lawyers and politicians. It has never become an undisputed constitutional right.
Indeed those opposed to abortion rights in the United States have campaigned for the election of national politicians that would nominate and confirm Supreme Court justices that would take a different view to that's set out in Roe versus Wade. The election of Donald Trump as president together with a Republican majority in the Senate meant that those opposed to the constitutional right to abortion had the opportunity to overturn Roe versus Wade. In particular the retirement of Anthony Kennedy and the death of Ruth Bader Ginsburg meant that the composition of the court shifted from what many regarded as a balance of those in favour of abortion as a fundamental right to what many now regard as a firm majority against there being such a right.
And this newly constituted Supreme Court chose to hear the case of Dobbs. The Dobbs case was about a Mississippi law which provides that except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than 15 weeks. So strictly speaking, this case was not about the general right to an abortion. Indeed the Chief Justice of the Supreme Court, John Roberts, said there was no need to decide in this case whether there was a constitutional right to an abortion.
"Our abortion precedents described the right to tissue as a woman's right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further. Mississippi's law allows a woman three months to obtain an abortion, well beyond the point at which it is considered late to discover a pregnancy." Roberts would not have decided anything more for him a question before the Supreme Court did not require anything more to be decided.
"That is all I would say out of adherence to a simple yet fundamental principle of judicial restraint. If it is not necessary to decide more to dispose of the case, then it is necessary not to decide more. Surely we should adhere closely to the principles of judicial restraint here. We have a broader path for court chooses entails repudiating a constitutional right we have not only previously recognised, but also expressly reaffirmed. The Court's dramatic and consequential ruling is unnecessary to decide the case before us."
But five other justices of the Supreme Court thought otherwise. Those five justices were willing to take that dramatic and consequential step. And so a case about a Mississippi law that actually permitted early abortions became the basis for removing the constitutional right to an abortion altogether. The majority opinion was set out by Samuel Alito.
"Held. The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. The Constitution makes no express reference to a right to obtain an abortion and such a right could not be implied into the Constitution as the right to abortion is not deeply rooted in the nation's history and tradition."
Other cases where the Supreme Court had found there to be a constitutional right to privacy could be distinguished. The court considered whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents. The court concluded that the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one's concept of existence proved too much.
Those criteria at a high level of generality could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognised in the cases on which Roe and Casey rely is something that both those decisions acknowledged. Abortion is different because it destroys what Roe termed potential life and what the law challenged in this case cause an unborn human being. None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
This was to be a case where the force of precedent could be set aside. Roe versus Wade was wrong and on a collision course with the Constitution from the day it was decided. The court also said that Roe versus Wade was poorly reasoned and unworkable. It's even stated that insufficient reliance had been placed on Roe versus Wade despite the judgement being 50 years old. On this elaborate and ambitious basis, the majority of the Supreme Court held that it was not bound by either Roe versus Wade or Casey.
Yet notwithstanding this complex and wide-ranging legal reasoning, the majority sought to insist that this judgement was only about the right to an abortion. "The court emphasises that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
But it is difficult to see how this can be correct. Because the court went further than what Chief Justice Roberts said was necessary to decide this particular case, then the approach of the court in this case may have implications in respect of where previous courts have found there to be constitutional rights to privacy on the basis of so-called substantive due process. The notion that there are certain fundamental rights which cannot be violated even if they are not expressly stated in the text of the Constitution.
This eventuality is candidly stated by Clarence Thomas. In his concurring opinion, he says, "in future cases we should reconsider all of this court's substantive due process precedents including Griswold, Lawrence, and Obergefell. These are the rights of married persons to obtain contraceptives to engage in private consensual sexual acts and to same sex marriage. As for three remaining liberal judges dissented from Alito's opinion, this means that the court can be seen as having gone in four directions, the three liberal justices who opposed the judgement, the Chief Justice who believed the court had gone too far in this case, the four justices that maintained that this judgement does not necessarily mean that the court should look at other privacy cases and the Justice who expressly says that the court should indeed look at other privacy cases.
Because of this four way split and because of the way the majority approached this case, the decision of Dobbs may mean that other privacy cases will be litigated to the Supreme Court. If so this means that other rights that the Supreme Court have held to be constitutional rights may now be open to being challenged. Had the majority adopted Roberts more restrained approach, this would not be the situation.
But they chose a more expansive, almost activistic approach. And so even if they insist that there will not be implications, there may well be consequences. And these potential consequences are in addition to the one inarguable legal fact of this judgement. There is now no longer a constitutional right to an abortion in the United States of America.
And this is likely to stay the situation for some time for two reasons. First, the entrenched power that the codified Constitution of the United States gives to less popular states where many are opposed to abortion means that it is highly unlikely that the text of the Constitution can be expressly amended so to put the constitutional right to an abortion beyond doubt.
And second, the current composition of the Supreme Court also makes it unlikely that the constitutional right to an abortion will be reinstated by a differently constituted court in the short to medium-term regardless of the results of upcoming national elections. This means that the political struggle for the right to choose to terminate a pregnancy will be for the foreseeable future on a state-by-state basis.
The legal battle has therefore not ended. But it is switching location, at least in the short to medium-term, from the United States Constitution and the Supreme Court to the constitutions, legislatures, and courts of individual states. Decisions about abortion will be made by state legislatures and court houses rather than by the women concerned exercising a constitutional right in consultation with their doctors, at least until and unless the right to abortion is somehow made again a constitutional right.
From a liberal perspective this shows that liberal gains are not part of some inexorable march towards progress, but they need to be fought and refought each generation. So this is how the constitutional right to an abortion was created and then removed. It was not by amendment and then repeal of any constitutional text, but instead what one court held to be a constitutional right was held by another court not to be a constitutional right. What one court gave, another court removed.