The Louisville Political Review looks at monumental court cases that have defined the United States, Commonwealth of Kentucky, and city of Louisville. Today we examine Dobbs v. Jackson Women’s Health Organization, its impact on the physical autonomy and bodily integrity of women, and political and electoral implications.
Friday, June 24th, 2022 will undoubtedly go down in United States history as a day no woman will ever forget. Though news of the soon-to-be released opinion in Dobbs v. Jackson’s Women’s Health Organization was leaked by Politico in early May, no amount of time could have prepared me for the heart-wrenching notification I received Friday morning stating that the official Supreme Court ruling had been handed down. I had woken up that morning in a country where my right to reproductive health care, privacy, and abortion were constitutionally protected. But like so many Kentucky women and others from states where trigger laws went into effect as soon as Roe was overturned, I suddenly lost these rights at 10:10 AM.
Background & Precedent
In 2018, the Mississippi State Legislature passed the “Gestational Age Act” which banned abortion after 15 weeks of pregnancy except for instances in which there is severe fetal abnormality or a medical emergency. The legislation asserts that any Mississippi provider who performs an abortion on a woman after the 15-week mark of pregnancy will be subject to license suspension or revocation. On the day the Gestational Age Act was meant to go into effect, the only abortion clinic in the state, the Jackson Women’s Health Organization, and one of its providers filed suit in federal district court. They challenged the constitutionality of the bill and asked for a temporary restraining order, which was granted. Thomas Dobbs, a Mississippi State Health Officer, and other interested parties argued that the Mississippi law was constitutional because of scientific advancements suggesting a fetus could be viable as early as twelve weeks due to its ability to sense outside stimulation. The federal district court rejected this notion and ordered that the fact-finding scope be limited to determining whether the 15-week mark is before or after viability.
The federal district court held that the Gestational Age Act violated the due process rights of women seeking pre-viability (which is commonly understood to be before the 24-week mark in pregnancy) abortions in Mississippi. The Fifth Circuit Court of Appeals affirmed the district court’s decision, holding that the Supreme Court’s precedent categorically created a right to a pre-viability abortion under the viability standard from Planned Parenthood v. Casey. Dobbs then filed a petition for certiorari (they requested the Supreme Court to review the case to consider it for adjudication). The Supreme Court granted writ to address the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
In oral aguments before the Court, the Petitioner, Dobbs, argued that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions formed in Roe and Casey, or alternatively, reject the standard of viability entirely. Dobbs asserted that Roe and Casey are wrong because there is no explicit or implicit right to abortion in either the Constitution or embedded in United States history. The Respondent, Jackson Women’s Health Organization, contended that the right to abortion is protected by the 14th Amendment’s Due Process Clause because physical autonomy and bodily integrity are crucial components of liberty. They then pointed out that the Court has found “liberty” to include rights to decide whether to accept medical treatment and to use contraception, and the right to abortion should be included under the same standard.
In Roe v. Wade, the Court held that the right to abortion is part of a right to privacy rooted in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe created a framework to balance the rights of the mother and her unborn child, despite the Court concluding in this case that “the unborn have never been recognized in the law as persons in the whole sense.” They did this by prohibiting states from regulating abortion within a pregnant person’s first trimester, allowing states to regulate abortion within the second trimester if the regulations are reasonably related to the health of the pregnant person, and then granting states the right to completely ban abortions within the third trimester of pregnancy unless an abortion is absolutely necessary to save the life or maintain the health of the mother. This framework was utilized due to the fact that a fetus is not viable outside of the womb until around the 24-week mark, or the tail end of the second trimester. With this logic, the mother maintains her right to marital, familial, and sexual privacy within the first and second (if applicable, depending on the state) trimesters of her pregnancy, and the life of the viable fetus is protected within the third trimester.
In Planned Parenthood v. Casey, another landmark abortion case, the Court reaffirmed Roe and argued that abortion is constitutionally protected by the right to liberty under the 14th Amendment’s Due Process Clause. However, the Court in Casey imposed a new standard to determine the validity of laws restricting abortions in which it must be determined whether a state abortion regulation has the purpose or effect of imposing an “undue burden”: a substantial obstacle to a woman seeking an abortion before the fetus attains viability.
The Opinion of the Court & Discussion
The Court ruled in Dobbs v. Jackson’s Women Health Organization that 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.
Among Associate Justice Samuel Alito’s many arguments in the Court’s opinion on Dobbs, perhaps the most prominent was his assertion that abortion is not protected by the Constitution because it is not expressly or implicitly referenced in the document. He asserts that abortion is not even implicitly mentioned in the 14th Amendment’s Due Process Clause, which the Court in Roe had previously disputed. He discusses how what qualifies as “liberty” provides little guidance to the Court and has long been controversial, with different people having different interpretations of what liberty means to them. In deciding whether or not a perceived right falls under the protection of the Due Process Clause, he says, the Court asks itself whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty” to keep their rulings from getting easily political. Justice Alito cites examples of cases where this decision had to be made, such as in the case of McDonald v. Chicago, which brought to question whether the individual right to bear arms was preserved under the 2nd Amendment and incorporated via the 14th Amendment. To measure the right’s deep rootedness in our nation’s history, the Court surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. Only then did the opinion in McDonald conclude that the right to keep and bear arms was indeed protected under the 14th Amendment and deemed necessary to our system of ordered liberty. Justice Alito then concludes that since there was little support in American law for the constitutional right to obtain an abortion until the latter part of the 20th century, the right to an abortion is thus not deeply rooted in our nation’s history or protected under the 14th Amendment.
To this I would say: the prioritization of women and their rights has never been deeply rooted in our nation’s history. Yes, we have been around since the country’s origins, but we have only reaped certain benefits of citizenship since the 1920s with the ratification of the 19th Amendment. Secondly, the term women isn’t even mentioned in the Constitution, nor is it in any of the country’s founding documents–despite their many mentions to men. And why would it be, when the Constitution was written nearly 200 years ago by men alone? In fact, the principle of coverture (where a married woman was simply not a person under the law; her legal existence was only associated with that of her husband’s) prevailed at the time the Constitution was written and adopted. Thus, the Court utilizing the question of whether a perceived right is “deeply rooted in our nation’s history” to determine if it is indeed a right under the Due Process Clause is nothing but a tool to easily exclude the rights of women, Black Americans, indigenous people, and LGBTQ+ folks whose rights have never been a top priority in our nation’s history. The utilization of this metric is incredibly flawed, and if the Court continues to use this, cases like Griswold v. Connecticut, Lawrence v. Texas, Obergefell v. Hodges, Loving v. Virginia are at high risk of also being overturned and the rights of so many more Americans will no longer be constitutionally protected.
There is a long history of women not being protected by the Constitution, and more specifically, by the liberties of the 14th Amendment, which has been utilized in the American legal system for decades to ensure unenumerated rights. Though the 14th Amendment often uses the gender-neutral term “persons” and many legal scholars argue this term was used by the Framers to be implicitly interpreted to include women, the Court itself obviously did not completely agree with this for more than a century after the Constitution’s ratification. Cases like Bradwell v. Illinois, Minor v. Happersett, and In re Lockwood all highlight this.
In Bradwell v. Illinois in 1873, a female attorney named Myra Bradwell claimed the 14th Amendment granted her the right to practice law in the state of Illinois by virtue of her status as a United States citizen. However, the Court found that the right for a woman to choose her profession was not protected under the 14th and that the “respective spheres of man and woman,” with women performing the duties of motherhood and wife in accordance with the “law of the Creator,” needed to be maintained. Using a separate spheres argument, the Court found that women in the U.S. could be legally excluded from the practice of law.
In the case of Minor v. Happersett in 1875, a number of women attempted to vote in a federal election, using the justification that the 14th Amendment protected their liberty to do so. Among these women were Susan B. Anthony (who was arrested and convicted afterwards) and Virginia Minor, who had to get her husband to file the lawsuit due to coverture laws forbidding her from doing so. Despite agreeing that women were indeed United States citizens under the 14th Amendment, the Court found that voting was not one of the “privileges and immunities of citizenship” and thus states could deny women the right to vote.
Again in the case of In re Lockwood in 1894, the state of Virginia would not allow female attorney Belva Lockwood to be admitted to the bar or practice law in the state. She argued that the 14th Amendment protected her right to be admitted to the Virginia bar as a citizen of the United States, however, the Court ruled that she could not practice law in the state due to a “common law disability” in which she did not have the right to enter into contracts with third persons without the permission of her husband.
And it hasn’t only been the Supreme Court who has been unconcerned with protecting the rights of women; Congress and most state legislatures have historically been neglectful of women and codifying their rights as well. In the Court’s majority opinion, Justice Alito argues that the primary reason the right to abortion is not “deeply rooted in our nation’s history” is due to the fact that, until the latter part of the 20th century, there was no support for the right to abortion in American law and that the earliest article proposing a constitutional right to abortion brought to the Court’s attention was published only a few years before Roe. He discusses how by 1868 when the 14th Amendment was ratified, three-fourths of states had enacted laws criminalizing abortion, and thus, there is little supporting evidence that abortion is supported by American law. With that logic, a case like Brown v. Board of Education, which prohibited segregation on the basis of race in public schools, would need to be overturned as well, since the same Congress that enacted the Fourteenth Amendment also segregated the public schools in the District of Columbia.
To that point, it bears mentioning that advocating for the right to abortion, or really any rights for women, has historically been the responsibility of female legislators. In a country where men have always held the majority of all facets of our government and where women have only been eligible to vote since the 1920s, the concerns of women have not always been so easily brought to light. It wasn’t until 1916 that a woman was first elected to Congress, and still to this day, women have never made up more than 27% of all members of Congress. Two-thirds of the women ever elected to the House have only been elected in 1992 or later, and the numbers are similar in the Senate: 42 of the 58 women who have ever served in the Senate took office in 1992 or later. This lack of representation has been an overwhelming obstacle to bringing forth the legislative needs of women–particularly those needs involving pregnancy and abortion. Thus, the logic of Court in Dobbs to rule abortion is not constitutionally protected by the 14th Amendment because it is not adequately supported in American law fails to truly consider how the underrepresentation of women in government has affected abortion’s presence in our nation’s legislative history.
Besides the Court’s flawed argument that abortion is not explicitly or implicitly protected by the Constitution, there is also another flaw in their opinion: the Constitution never explicitly defines when life begins. Throughout American society, there are indeed different interpretations of when life begins; for instance, as a Catholic, I was taught to believe life begins at conception. Many in the Jewish faith believe that life begins at birth. Those in the medical field typically agree that life begins when a fetus is viable outside at around 26 weeks. But, constitutionally, the beginning of life is never defined. In fact, as concluded by the Court in Roe, “the unborn have never been recognized in the law as persons in the whole sense.” So why exactly is the Court allowing states like Kentucky to grant more rights to a fetus, whose life is not explicitly or implicitly constitutionally protected, than a living, breathing human woman? In a country that touts a strong separation of church and state, it is difficult to understand the Court’s constitutional basis for allowing an imbalance of rights between a woman and an unborn child. Perhaps it is because this Court rules on their own personal politics, not on law.
The Political Implications of Dobbs
Despite Justice Alito writing in the majority opinion that nothing in Dobbs should be perceived to cast doubt on other precedents not pertaining to abortion, the concurrning opinion written by Associate Justice Clarence Thomas may suggest otherwise. In his opinion, Justice Thomas asserts that the Due Process Clause of the 14th Amendment does not secure any substantive rights, and thus it certainly does not secure the right to an abortion. Because of this, he says, the Court should reconsider all substantive due process precedents. He specifically mentions how cases like Griswold v. Connecticut, which secured the right for married people to obtain contraceptives; Lawrence v. Texas, which secured the right to engage in private, consensual sexual acts; and Obergefell v. Hodges, which secured the right for same-sex couples to marry, are “demonstrably erroneous,” and it is the Court’s duty to “correct the error” established in those precedents.
Justice Thomas’s opinion is inarguably concerning. If this Court does not believe that abortion passes the test of being “deeply rooted in our nation’s history,” then it is hard to imagine that they will find protections for contraceptives, same-sex marriage, or same-sex sexual relations “deeply rooted” in our nation’s history, either. As the liberal minority points out in their joint dissenting opinion, either the majority does not really believe in its own reasoning, or all rights dating back to the mid-19th century are insecure. If this ultra-conservative Court continues to follow the deep-rootedness test to determine whether a right is protected under the Due Process Clause, the only rights they’ll find protected in this country are those for white, landowning men.
This is what is incredibly worrying about the Court as an institution; there are no formal rules about whichever test they must use to determine if something is a protected right, they can simply arbitrarily decide on a standard that best supports their own personal political beliefs.
And data has shown that the American public’s confidence in the Court as an institution is dwindling; according to a Gallup poll conducted this year, only 25% of adults in the U.S. say they have “a great deal” or “quite a lot” of confidence in the Court, which is down 11 percentage points from the year prior. This is a historic low in the 50-year history of the Gallup poll, with the highest confidence rating peaking in 1988 at 56%.
This 11-point plummet is most likely due to Politico’s leak of the opinion in Dobbs back in early May, where it was rumored a clerk to one of the liberal justices leaked the opinion early in hopes of garnering enough public outlash to divide the Court’s majority before any ruling could be officially handed down. Though the leak did not affect the Court’s final ruling on Dobbs in June, there are still major implications for the Court and its legitimacy going forward. Regardless of your views on the ruling itself, this leak completely impedes the Court’s ability to function as an independent check on government action, and trust amongst Justices and staff has been entirely compromised.
In addition to the implications for the Court as an institution and the constitutionality of unenumerated rights, the ruling in Dobbs may have electoral implications as well. Since 1976, when the GOP adopted a platform that promised an anti-abortion constitutional amendment, abortion has been a galvanizing force for the conservative movement. According to a 2021 poll by Pew Research Center, 72% of conservatives said abortion should be illegal in all or most cases. But now that abortion is no longer protected by the Constitution and red states are free to place restrictions on abortion as they please, will conservative voters reward conservative candidates in the 2022 midterms for their legislative success, or will they throw in the hat and say “the work is done?” As of July 1st, in a generic ballot for Congress, if the elections were held today, 47% of likely voters would vote for the Republican candidate, and 42% would vote for the Democratic candidate. However, the polling is extremely preliminary on this, and it is far too early for the weight of the abortion ruling to be truly felt by Americans.
Similarly, will Democrats be discouraged by the ruling in Dobbs and lack of codification of Roe in a Congress controlled by their party, or will they be emboldened to go to the polls and spark change in November? It is definitely hard to predict. In a poll conducted by Reuters/Ispos in early May, 63% of respondents said they were more likely to support candidates who support abortion rights in the Nov. 8 election that will determine control of Congress for the next two years. In addition, research shows that holding deeply negative views of the opposite party and its leaders is correlated with political participation. Thus, Democrats in red states with trigger laws may have a higher turnout rate in November than they would have otherwise had.
In conclusion, the Court’s opinion in Dobbs has brought to light many inherently wrong aspects of the Court as an institution and their views on the rights of groups who have never been prioritized in our nation’s history. In a Post-Roe America where the Court is no longer protecting the rights of so many Americans, it is crucial that we organize, rally, and vote to ensure our voices are heard and rights protected.
For Kentuckians, here is important information about the upcoming general election on November 8th, how you can vote, voter ID requirements, polling locations, and more.