There is no reason, in fact or in law, to erase the constitutional right to abortion, writes Marjorie Cohn.
Protests at the U.S. Supreme Court on June 24, the day Roe v Wade was overturned. (Ted Eytan, Flickr, CC BY-SA 2.0)
For the first time in U.S. history, the Supreme Court has retracted a fundamental constitutional right. “We hold that Roe and Casey must be overruled,” Samuel Alito wrote for the majority of five right-wing zealots on the court in Dobbs v. Jackson Women’s Health Organization. They held that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”
Since the day Roe v. Wade was decided nearly 50 years ago, its opponents have executed a methodical campaign to overturn it. There is no reason, in fact or in law, to erase the constitutional right to abortion. The Constitution still protects abortion, and there have been no factual changes since 1973 that would support abolishing it. The only thing that has changed is the composition of the court. It is now packed with radical Christian fanatics who have no qualms about imposing their religious beliefs on the bodies of women and trans people, notwithstanding the Constitution’s unequivocal separation of church and state.
Alito was joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett in stripping protection of the right to self-determination from half the country’s population.
In their collective dissent, Stephen Breyer, Sonia Sotomayor and Elena Kagan said the majority “has wrenched this choice from women and given it to the States.” They wrote that the court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.”
“…the court… is now packed with radical Christian fanatics who have no qualms about imposing their religious beliefs on the bodies of women and trans people, notwithstanding the Constitution’s unequivocal separation of church and state.”
Noting, “After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenters conclude: “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
During the December oral argument, Sonia Sotomayor expressed concern about how the Supreme Court would “survive the stench” of the overtly ideological overruling of Roe. It will show, she said, that the Court’s rulings are “just political acts.”
By overturning Roe and Planned Parenthood v. Casey, the court’s majority confirmed the significance of Sotomayor’s query. While purporting to shift the restriction or abolition of abortion to the states, the court has engaged in a political act. It delegated the fate of a right that had been moored in the Constitution to the political process.
The Supreme Court as composed Oct. 27, 2020, to present. Front row, from left: Samuel A. Alito, Jr., Clarence Thomas, John G. Roberts, Jr., Stephen G. Breyer, Sonia Sotomayor. Back row, from left: Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch and Amy Coney Barrett. (Fred Schilling, Collection of the Supreme Court)
“This conservative court defers to the political process when it agrees with its results,” Berkeley Law School Dean Erwin Chemerinsky wrote in the Los Angeles Times, “but the deference vanishes when the conservative justices dislike the states laws.”
As Chemerinsky notes, “there was no deference to the political process earlier this week when the conservatives on the court declared unconstitutional a New York law limiting concealed weapons that had been on the books since 1911 or struck down a Maine law that limited financial aid to religious schools.”
Brett Kavanaugh insisted in his concurrence that the Constitution is “neither pro-life nor pro-choice.” Arguing that it is “neutral” on abortion, he claimed that the issue should be left to the states and “the democratic process.” But partisan gerrymandering and the Supreme Court’s evisceration of the Voting Rights Act to the detriment of Democrats and people of color belie the court’s purportedly “democratic” and “neutral” delegation of abortion to the states.
“… partisan gerrymandering and the Supreme Court’s evisceration of the Voting Rights Act to the detriment of Democrats and people of color belie the court’s purportedly ‘democratic’ and ‘neutral’ delegation of abortion to the states.”
The court held in Roe that abortion was a “fundamental right” for a woman’s “life and future.” It said that states could not ban abortion until after viability (when a fetus is able to survive outside the womb), which generally occurs around 23 weeks. Nineteen years later, the court reaffirmed the “essential holding” of Roe in Casey, saying that states could only place restrictions on abortions if they don’t impose an “undue burden” on the right to a pre-viability abortion.
Alito wrote in Dobbs that since abortion is no longer a fundamental constitutional right, restrictions on it will be judged under the most lenient standard of review — the “rational basis” test. That means a law banning or restricting abortion will be upheld if there is a “rational basis on which the legislature could have thought that it would serve legitimate state interests.”
At issue in Dobbs was Mississippi’s 2018 Gestational Age Act, which outlaws nearly all abortions after 15 weeks of pregnancy, well before viability. The law contains exceptions for medical emergencies and cases of “severe fetal abnormality,” but no exception for rape or incest.
The majority said that Mississippi’s interest in “protecting the life of the unborn” and preventing the “barbaric practice” of dilation and evacuation satisfied the rational basis test so its law would be upheld. The court accepts the notion of protecting “fetal life” but nowhere mentions what the dissenters call “the life-altering consequences” of reversing Roe and Casey.
In both Roe and Casey, the court grounded the right to abortion in the liberty section of the Due Process Clause of the 14th Amendment, which says that states shall not “deprive any person of life, liberty, or property, without due process of law.” The court in Roe relied on several precedents saying that the right of personal liberty prohibits the government from interfering with personal decisions about contraception, marriage, procreation, family relationships, child-rearing and children’s education.
“The court in Roe relied on several precedents saying that the right of personal liberty prohibits the government from interfering with personal decisions about contraception, marriage, procreation, family relationships, child-rearing and children’s education.”
The Dobbs majority said the Constitution contains no reference to abortion and no constitutional provision implicitly protects it. In order to be protected by the Due Process Clause, a right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” According to the majority, there is no liberty interest because the law didn’t protect the right to abortion in the 19th century.
To his credit, John Roberts did not vote to overturn Roe and Casey, writing that the majority’s “dramatic and consequential ruling is unnecessary to decide the case before us.” Mindful of the threat this “serious jolt to the legal system” will pose to the legitimacy of the Roberts Court, the chief justice sought to split the baby, so to speak. He discarded the viability test and upheld the Mississippi law, leaving the issue of the constitutionality of abortion to a future case. Purporting to be a supporter of abortion rights, Roberts said women in Mississippi could choose to have an abortion before 15 weeks of pregnancy.
Protesters at the U.S. Supreme Court on May 3, the day after the draft opinion for Dobbs v. Jackson Women’s Health Organization was leaked. (Miki Jourdan, Flickr, CC BY-NC-ND 2.0)
In order to justify their rejection of stare decisis (respect for the court’s precedent) to which the members in the majority had pledged fealty during their confirmation hearings, Alito wrote that Roe was “egregiously wrong.” He and the others in the majority had the nerve to compare abortion to racial segregation, drawing an analogy between the court’s overruling of Roe and its rejection of Plessy v. Ferguson in Brown v. Board of Education.
Nearly half the states have laws banning or severely restricting abortion. Almost 1-in-5 pregnancies (not counting miscarriages) end in abortion, which is one of the most frequent medical procedures performed today. Twenty-five percent of American women will end a pregnancy in their lifetime. Now that Roe has been overturned, it is estimated that 36 million women and others who can become pregnant will be denied the fundamental right to choose whether to continue a pregnancy.
The dissenters observed that under laws in some states (like Mississippi) that don’t offer exceptions for victims of rape or incest, “a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life.”
Alito wrote, “The Court emphasizes 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.”
Part of the Constitutional Fabric
But the dissenters were not convinced. “No one should be confident that this majority is done with its work,” they warned. The dissent noted that the right to abortion enshrined in Roe is “part of the same constitutional fabric” as the rights to contraception and same-sex marriage and intimacy. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
Thomas didn’t pull any punches in his concurrence. He said that the court “should reconsider” other precedents based on substantive due process, including Griswold v. Connecticut (the right to contraception), Lawrence v. Texas (the right to same-sex sexual conduct) and Obergefell v. Hodges (the right to same-sex marriage).
In Alito’s draft opinion, which was leaked to Politico in May, he wrote that the rights protected by Lawrence and Obergefell are not “deeply rooted in history.” But the final majority opinion didn’t go that far. Kavanaugh would not have signed onto it. He wrote in his concurrence, “Overruling Roe does not mean the overruling of [Griswold, Obergefell, Loving v. Virginia (right to interracial marriage)], and does not threaten or cast doubt on those precedents.”
The dissenters frame the Dobbs v. Jackson Women’s Health Organization ruling as a gross attack on the right to self-determination:
“The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven — all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.”
It is that right to self-determination that the five ultraconservative members of the court have wrenched away from half of the people in the United States.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.
Copyright Truthout. Reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
That human life begins at conception is self evident, the question / argument since 73 and earlier has been when does state protected human life begin? Science above all has proven that human life begins at conception. To term everyone who opposed RvsW as fanatics, zealots, fascists, science deniers, etc. is to practice the same type of journalism I try to avoid by turning to CN. Unfortunately this is the case with not only this article but the recent Chris Hedges article as well. There remains today a massive problem of the human heart and soul which in itself reflects a failure of the Christian church. No amount of civil court rulings will change that.
Aside from what the aristocracy’s fossilized constitution may or may not have stated or implied, the right to safe abortion was essentially doomed when Obama reneged on his campaign promise to pass a strong law codifying abortion rights while Democrats held the congressional supermajority, backtracking in 2009 that it was “not the highest legislative priority” of his administration. And let’s not forget that Hillary Clinton chose Tim Kaine as her running mate, who had supported and signed anti-abortion legislation when Governor of Virginia. Now Biden’s apparent intention to appoint to a lifetime judgeship the anti-abortion activist Chad Meredith is just business as usual for the party of betrayal.
It is utterly disgusting is the Democratic Party using this outrage as a fundraising tool, to elect party members who will continue to ignore the will of the people. The Democratic Party continues to refuse to protect a woman’s right to choose while they have had the power to do so. They blame Republicans (and even supposed leftwingers) although they could remove the filibuster and codify abortion rights tomorrow. Instead they would rather protect the filibuster than women’s rights.
If life begins at conception then who has the right, morally or legally to end its Life?
Well, you don’t need a right where you have ignorance and a government that imitates it.
Erased the right to abortion? There never was any such right. There is no right in the U.S. Constitution to abort your baby. It doesn’t exist. This is what the court found, and it’s been widely acknowledged for decades. Roe was a mistake that has now been put right.
Conservatives profess to believe that rights should be rooted, as nearly as possible, at the governmental level where they are exercised. Local is better than regional. County is better than state. State is better than national. No remote authority, they argue, ignorant of or indifferent to local context, should supersede an authority that is closer to where a decision is made. Making abortion a matter of states’ rights, they maintain, adheres to this principle. Whether or not women should enjoy the right to obtain an abortion should reflect what the people of that state have decided in their politics, not what the nation has decreed.
But does lodging abortion rights at the state level really bring those rights as close as possible to where they are exercised? Of course not, and it exposes the hypocrisy of their position. The right to an abortion is not the right that a state peremptorily declares for its women. It’s not the right of a collective, but the right of an individual woman exercising dominion over her body. The paradox, lost on conservatives, is that a national, federally mandated right to an abortion, enshrined at the highest level of government, is what brings the decision closest to the conscience of the individual who will undergo the procedure. That’s where it belongs.
It is an interesting civil libertarian argument. However, where it fails is in not wrestling with the issue that there is not one body/person at stake here, there are by definition two bodies. One is the pregnant woman. The other is the child/fetus who also may or may not be human with a right to life.
The determination of whether that second body is human and needs to be protected is in fact what needs to be done at the local level, because each community may have a different concept of where/when human life begins.
Look at European countries. They have widely different abortion laws. The issue is not nearly as simple as some people make it out to be.
Caliman:
I agree with you “that there is not one body/person at stake here, there are by definition two bodies. One is the pregnant woman. The other is the child/fetus who also may or may not be human with a right to life.” Where I disagree with you is that it’s not only “each community [that] may have a different concept of where/when human life begins.” Every individual contemplating an abortion wrestles with that issue, and where to draw the line. In my experience, few people are cavalier about having an abortion. That’s why I believe the decision properly rests (uneasily) with the stirred up “conscience of the individual who will undergo the procedure.”
The 14th Amendment is not where the right to abortion lies. The two clauses of its Section 1:
1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
2. 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 14th amendment was seen by John Bingham, its drafter, as formally necessary to enforce the Bill of Rights against the states. The first clause says exactly that. The second clause simply repeats the words of the 5th Amendment:
“No person shall be … deprived of life, liberty, or property, without due process of law”.
So if the right to abortion is grounded in the Constitution, we must look not in the 14th Amendment, but hopefully in the Bill of Rights. The “liberty” assured in the 5th Amendment looks very much like non-jailing. We won’t find a finer “personal liberty” (Cohn’s term) in the 5th Amendment. Search and search the Bill of Rights for personal liberties. If I were a woman wishing an abortion I’d appeal on the grounds of property, not liberty. The fetus is my property. Before it grows into something I don’t want, I wish to destroy it, or perhaps to preserve it for a memorial. The US can’t deprive me of my property. The present US Supreme Court might deny that the fetus is my property.
Kavanaugh is correct that the US Constitution is neutral re. abortion. Neither the US Constitution nor any national constitution I can find grants the fetus’s womb’s possessor the strong right of ownership she needs, nor a subsuming right of self-determination or even of bodily integrity. As if by design, national constitutions don’t dare go there. So decade by decade, nation by nation, state by state within nations, abortion rights are decided and re-decided.
Samuel Alito was appointed by George W. Bush. I am now not feeling at all bad that I ended a 30 year friendship in 2005 after my friend voted for GW a second time in 2004.
My friend was a fundamentalist Christian, but he did not fit the worst stereotypes of people of that persuasion. He and I met in the mid 1970’s when we were both graduate students working at a part time job sponsored by our state university. I was a Christian at the time, but not a fundamentalist Christian, and he and I hit it off. My friend was accepting when I later became unhappy with Christianity and decided I was no longer a Christian.
I was bothered when my friend indicated in 2000 that he was voting for GW Bush. Anybody but Gore, and he was very strongly against abortion. I was willing to accept it at the time. However I was especially bothered in 2004 when my friend indicated, without any hesitation or any sign of having any doubts or second thoughts, that he was going to be voting for GW Bush again.
My friend was never “in-your-face” about his religion or politics. And I never thought of him as being bigoted or intolerant. However, even if my friend was himself not any of these things, I was very bothered that my friend was unhesitatingly supporting the candidate who was supported by people in the Religious Right who are these things.
And my friend was very much in favor of the Iraq war.
I let my friend know that I needed to reevaluate my friendship with him. I proposed that if we got together we could talk about old times, and about work and school, and about people we both knew. However I did not want to hear my friend’s thoughts on any controversial issue. And I especially did not want to hear about any of my friend’s or his family’s church or Christian activities, and I said that to my friend knowing that his wife was a music teacher at a Christian elementary school, and had a singing ministry that was very important to her, and that his two daughters went to a private Christian college.
My friend and I mutually agreed to end our friendship, and we did so on good terms. We agreed we could have fond memories of our past relationship, and we exchanged best wishes for each other’s futures. My friend had been a good friend; however after voting for GW a second time and being in favor of the Iraq war I could no longer respect my friend’s politics or especially his religious faith. And with recent Supreme Court decisions by “justices” including a couple of “justices” appointed by GW Bush, I would now absolutely not want to renew my former friendship. (My friend and I never saw each other after ending our friendship, and he and I have both since moved to different places.)
The American Constitution was derived from the minds of, and penned by white racist, slave holding, charlatans.
Is it any wonder that hypocrisy is endemic in American culture, and is brandished at inopportune moments, by Zealots of all stripes?
Human’s – the one social animal, supposedly endowed with higher conscious reasoning skills, interact with each other, hence, each being an object to the other; each’s action towards the other precipitates an equal force reaction. A few examples, just in case; violence engenders violence, hate, hate, love, love; likewise with the opposite emotions!
“The law of action-reaction, (Newton’s third law) explains the nature of the forces between the two interacting objects. According to the law, the force exerted by object 1 upon object 2 is equal in magnitude and opposite in direction to the force exerted by object 2 upon object 1.” (Wikipedia)
A very pertinent question: Do animate – sentient objects, behave differently than inanimate objects when the nature of the forces between the two interacting objects collide?
Does a national society, afflicted from inception, by a general moral laxity, have any right to subjectively draw red lines, when interacting with ‘others’ of out-groups we arbitrarily see as our mortal enemy; say for example, when America bombs infants and children in sovereign foreign places, such as Iraq, Afghanistan, Libya, Somalia, and too many others to list them all.
Is it only in America that pregnancy, giving birth, and successfully rearing the next generations deserves to be regarded as a sacrosanct obligation? Where are the right-wing religious Christian zealots when it comes to seeing themselves in the mirror? This applies equally to religious zealots of all stripes!
As for the American Constitution, and all its amendments, the “separation of church and state” being one, is a conceptual idea, implied by the aristocratic framers. The Constitution may have established a Federal democratic republic, but the word ‘democracy’ does not appear anywhere in the document, and as we the people – the 99% of us, ought to know by now, we certainly do not democratically govern ourselves, not even indirectly.
The US oligarchy, in its constant striving to maintain its hegemonic global power, will tyrannically attempt to terminate any people, en masse, who dare to get in their way, without so much as the blink of an eye.
Attempting to abort entire nations is considered the collateral damage of ‘just’ war, and has nothing to do with America’s overt religious immorality and double standards.
What then remain of the implied moral foundations of our republic today?
Law or no law…WHY??? should any man have the right to decide what happens to a woman’s body??? Are we merchandise to be traded at will…to the highest bidder?
i would agree with you if the father gets to choose if he wants to pay child support if he does not want the CHILD. if the man has no opinion on half of his child then he should not be on the hook for 18 years of child support. also, if you want to murder a child in your stomach, i think you should use your own money and not the tax payers.
Even this foolish atheist can see that the argument is not so simple as you are making it seem. Unlike other aspects of health care, pregnancy involves an arguably potential other person. This is the debate that has been going around in circles for many decades, with neither side providing (to me) honest or convincing arguments. When does a human gain the right to life? Conception, a certain number of weeks later, birth or (as has been suggested recently) some time afterwards? What reasons are there for selecting that date? I’m not sure there is any answer that is acceptable to all.
“There is no reason, in fact or in law, to erase the constitutional right to abortion.”
Hmmm, if in the opinion of the justices there is no such constitutional right, as they make the case in the argument, then the comment above make no sense. In other words, if a previous court created a “constitutional right” out of whole cloth, then it is entirely possible and indeed desirable to correct the previous ruling.
What we need to do, state by state, is to pass actual law legalizing abortion to the level supported by each community. Almost every state in the nation will support some level of abortion rights, though perhaps not as extensively as allowed under Roe. Let democracy and federalism work; that’s what this country was supposed to be all about!
Congress has the power to change this. Many Democrats seem ignorant of that fact.
“During the December oral argument, Sonia Sotomayor expressed concern about how the Supreme Court would “survive the stench” of the overtly ideological overruling of Roe. It will show, she said, that the Court’s rulings are “just political acts.”
The whole process of sitting these judges is an ideological political act. It’s a dog and pony show thanks to TV the way it works today. The idea of believing in a strict constitutional interpretation or believing that it is a breathing living document has always been with us. And we are always left if your a democrat just to keep voting democrat and we can fix this. You already know the other side of this.
Maybe the 60’s were the golden years of the justices and maybe some folk think this is just the beginning of a new golden era. By now it should be clear that lifetime appointments have to end and watching as RBG hung on to the end, no doubt as others will in the future should be a democratic mandate, mantra, to get my vote or any other. Give us something as up to this point a good argument could be made you haven’t given us much and this two years of democratic control will go down as the least productive and of course, it would take the democratic party to bring us to the brink of a nuclear holocaust. Jesus who would have thought.
So rights have to be “deeply rooted in history”? What a load of crap!
How “deeply rooted in history” is the right not to be enslaved? How about the whole Enlightenment concept of innate equal rights versus the divine right of kings?
Any kind of social change can’t be “deeply rooted in history” by definition, so this is a perfect formula for justifying the status quo. Dr. Pangloss would be proud!
I have had a boo at the US constitution. It doesn’t mention abortion anywhere. Where does the claim of constitutional abortion appear in the document?
I don’t have an opinion either way, other than to say that with the exception of incest or rape, most pregnancies are easily avoided, i.e. through personal responsibility.
Birth control, even when properly used, can and does fail. And having an abortion can be a way of taking ‘personal
responsibility’. Female reproductive health does not belong in the hands of legislators who may not even have a
middle-school understanding of women’s anatomy and biological processes. For example, the legislator who thought
that ‘a woman could just swallow a camera and see what’s going on down there in the womb.’ YIKES.
My daughter studied and worked diligently for fifteen years in order to become a board-certified Maternal Fetal Medicine specialist. She deals with problem pregnancies daily. It’s difficult work, providing compassionate and appropriate care
for her patients. Sometimes her team performs late-term abortions, for a variety of reasons, but never ever on a ‘whim’.
Now her job is much more complex, as she must juggle competing standards (of care vs. of legality) in emergent situations.
Why should her expertise be trumped by ill-informed activists who don’t have even minimal understanding of her work ?
If abortion is a “constitutional right,” why is it not mentioned in the constitution?
Good question. Electronic voting isn’t mentioned in the constitution either.
And … electronic voting is not a constitutional right.
Voting is … it’s mentioned in the constitution.
Why nobody repeal the 1980 Hyde Amendment, making it harder for poor women to access abortions?
Why did Obama not fulfill his campaign promise to legislate and protect abortion, even with a veto-proof majority?
The writing was on the wall. There is no separation of church and state when fundraising is involved.