The judicial execution of Roe v. Wade is still a fresh, bleeding wound to many Americans — and a cause for celebration to many others.
What sometimes gets lost in the arguments about the grand moral questions involved is the actual legal reasoning used by the Supreme Court and its potential impact on future cases. We decided to ask a friend of ours in the local Bar Association to write us an analysis of the Supreme Court’s ruling, and she gracefully agreed.
So, without further ado, here’s a piece by local attorney Margaret Held (about whom you’ll be hearing more in the near future, by the way) about the Court’s decision in Dobbs v. Jackson and why it may have, in her words, “apocalyptic” consequences.
The first thing you’ll read if you pull up the most controversial opinion in recent Supreme Court history is this:
Mississippi’s Gestational Age Act provides that “[e]xcept 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 hu- man being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–191.
Respondents—Jackson Women’s Health Organization, an abortion clinic, and one of its doctors—challenged the Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833.
The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates this Court’s cases forbidding States to ban abortion pre-viability.
The Fifth Circuit affirmed. Before this Court, petitioners defend the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.
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.
From here, everyone (including me) is going to have something to say about it. Pro-life advocates will applaud the Court taking a stand to “protect life.” Pro-choice people advocate hitting the streets, picketing Clarence Thomas’s house, and organizing “camping trips” to states where abortion is still legal for residents of states where it is not.
This case does nothing to protect unborn children. All this decision does is allow individual states to make abortion illegal.
Essentially, the Supreme Court is washing the federal government’s hands from protecting a woman’s right to bodily autonomy, leaving state governments to do as they will, up to and including defining women’s rights by the status of the contents of their wombs.
This case does far more harm to our Constitution than simply shrugging off responsibility for protecting woman’s rights. But to understand the blow this case has made to our country, folks must first understand the reasoning used by the Court’s majority when crafting their decision.
The Court essentially says three things. First, that if the Constitution does not explicitly set out a human right in the first eight (8) amendments, you don’t have it and state governments can do what they want. Second, the Court says that if the right has not existed in our country’s history, then state governments can do what they want. Third, the Supreme Court says that abortion laws are unique and state governments have the right to protect the interest of “potential life.”
The implications of the Court’s ruling are stunning.
First, the Court says that there is no right to abortion mentioned in the Constitution (well, duh, not a lot of legal abortions going on in the 18th century).
The Court also conveniently says that only the first eight amendments count. So, we still have the following rights, at least in theory:
1. To speak freely, go to church where we want, and protest.
2. Carry a gun.
3. Keep the government from making us house soldiers unless we are at war.
4. Don’t get searched or arrested without a warrant.
5. Not to testify against yourself, be tried twice for the same crime, or be treated differently under the same law.
6. Get a lawyer if you are charged with a crime.
7. The right to a jury trial.
8. Bail and fines can’t be too big, and punishments must fit the crime.
Here are the amendments the Supreme Court now tells us are up for grabs:
9. All rights not limited by the Constitution.
10. All power not reserved by the Constitution.
These amendments were passed at the same time the Constitution was ratified. The next seventeen were passed over the next hundred years or so including, most notably, the Fourteenth Amendment, which says that if the federal government can’t do something because of the Constitution, then state governments can’t do it, either.
Roe v. Wade said, essentially, that (a) the federal government can’t treat women differently than it treats men, because of the Fifth Amendment; (b) that just because abortion is not listed as a right in the Constitution doesn’t mean it does not exist, because of the Ninth Amendment, and (c) any Constitutional protection that limits the federal government’s ability to make abortion illegal also limits the power of state governments to make abortion illegal, due to the Fourteenth Amendment.
This Court, in overturning Roe v. Wade, essentially says, “Just kidding.”
This new Court has instead decided that (a) it’s fine to draft laws that impact only women, not men – thus ignoring “equal protection under the law” under the Fifth Amendment; (b) it’s fine for states to regulate abortion because it’s not specifically listed as a right in the Constitution –ignoring the whole “just because a right is not specifically listed doesn’t mean it doesn’t exist” notion under the 9th Amendment, and (c) since the federal government can do it, the state governments can do it – abortion laws do not impact one gender more than another.
Seriously. They just said that.
Having disposed of the actual language of the Constitution in order to overturn Roe, the Court also had to attack the whole notion of “stare decisis” or “precedent.” In legalese, those terms mean that a law should be “rooted in our Nation’s history and tradition.” In plain English, they mean that if something has been the law for a long time and people are counting on that law, then courts shouldn’t be quick to overturn it.
To overturn Roe, this Court decided that this country’s history did not provide a right to abortion because historically, before Roe v. Wade, abortion was illegal in most states.
But this argument is nuts. Historically, before Loving v. Virginia, inter-racial marriage was illegal in most states. Before Obergefell, same sex marriage was illegal in most states.
If Roe v. Wade, which has been the law of the land for 50 years, can go down with the stroke of a pen, so can Obergefell, so can Loving, and so can pretty much any Supreme Court decision protecting your family’s rights.
The Court tries to stop us all from hyperventilating by suggesting that abortion laws, unlike other precedents, are unique. They say that this decision only applies to abortion, not to any other precedent. This is because, they say, that unlike those other decisions, there is a third interest at stake here — the interest of “potential life.”
But that is the most apocalyptic thought of all.
If the government gives “potential life” the same Constitutional protection as “actual life,” then its power is never ending.
• Every egg donated for surrogacy is protected from disposal by State law, because a fertilized egg certainly has the potential for life.
• Birth control (any birth control) can be legislated as illegal because preventing a pregnancy carries the same implication for “potential life” as preventing an abortion does – a woman’s egg, after all, has the potential to become life, as does a man’s sperm. This means no birth control pills, no IUDs, and no condoms.
• Stem cell research is gone if state government says so. You can grow living tissue from a stem cell. That’s also “life,” right?
I wish I was making this up.
Conservatives, ironically, have traditionally claimed to support limiting the government’s power and respecting tradition and precedent. We hear on a daily basis that this Court is stacked with “conservatives,” but this decision has shown them to be anything but champions of individual rights or tradition. Those who wrote this opinion are ideological radicals of the type that conservatives have previously recoiled from, as they represent a particularly irrational and dangerous form of tyranny — the kind that’s willing to ignore the language of the Constitution as well as precedent to advance the agenda of a religious minority.
This decision — while cheered on by religious extremists and moral hypocrites — may well be remembered as this century’s equivalent of the 1857 Dred Scott decision, which infamously held that Black people weren’t human beings and could never be American citizens. Let us at least hope this decision doesn’t prove to be quite as dangerous to what’s left of our nation’s stability.
Margaret Held is a family law attorney practicing in Knoxville and the founder of the Held Law Firm.
Published on July 1, 2022.