Nee Law Firm
THE SUPREME COURT AND ABORTION by Kevin Diehl
When the Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization was leaked in an unprecedented breach of Court protocol in May 2022, it provoked a firestorm of protests, accusations and general hysteria over abortion rights. What it didn’t provoke was much accurate information about what the decision really meant.
The Dobbs case arose out of a constitutional challenge of a Mississippi law that prohibited most abortions after the first 15 weeks of pregnancy. To understand the context for this case we have to go back to 1973, when the Supreme Court took ownership of the abortion issue with one of the most famous rulings in its history, Roe v. Wade. Prior to Roe, individual states determined whether abortion was legal or not within their boundaries.
But that would all change in 1969, when a Texas woman named Norma McCorvey became pregnant for the third time. Norma had struggled with alcohol and drug use for years, and she had given up custody of her first two children. This time she decided she wanted to end the pregnancy. But in Texas, abortion was only allowed to save the mother’s life.
Two attorneys – Sarah Weddington and Linda Coffee – saw McCorvey’s situation as an opportunity to challenge Texas’ abortion statute. They filed a lawsuit on her behalf in federal court against the district attorney of Dallas County, Henry Wade. Because Norma’s attorneys wanted to protect her identity, McCorvey would become known to history by her fictional name, Jane Roe. Hence, the case was called Roe v. Wade.
Weddington and Coffee’s argument was based on their claim that the Texas abortion law was unconstitutional. They based their argument on the 9th and 14th Amendments.
The 9th Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Enumerated rights are those spelled out in the Bill of Rights – such as the right to free speech or the right to bear arms. In essence, the 9th Amendment acknowledges that the Constitution doesn’t list every possible right retained by the people.
The 14th Amendment, which was not part of the original Bill of Rights, says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”
Weddington and Coffee argued that the Texas abortion law invaded a woman’s right to “liberty” under the 14th Amendment. They also argued that the law infringed on rights to marital, familial, and sexual privacy guaranteed by the Bill of Rights. And, perhaps most controversially, they argued that the right to an abortion was absolute – a woman was entitled to end a pregnancy at any time, for any reason, in any way she chose.
The state of Texas presented a counterargument that states have a compelling interest in safeguarding health and protecting prenatal life from the time of conception. Interestingly, Texas also invoked the 14th Amendment, arguing that a fetus is a “person” entitled to the protection of the 14th Amendment.
The Court ruled mostly in Roe’s favor. By a seven-to-two vote, the justices found that abortion falls under a Constitutional right to privacy derived from the 14th Amendment’s Due Process Clause. Although the Due Process Clause doesn’t actually say that Americans have a right to privacy, the Court had recognized that right for decades. In Roe, the Court concluded that this right to privacy extends to a woman’s control over pregnancy.
Since the Constitution does not provide a definition of a “person,” the Court did not accept Texas’ argument that Constitutional protections begin at conception. The Court concluded that the “unborn have never been recognized in the law as persons in the whole sense.”
It was not a total victory for Roe, however. The Court did not agree that the Constitution guarantees an absolute right to an abortion. The ruling allowed states to put some restrictions on abortion by setting up a three-trimester framework. Essentially the state could not put many restrictions on the first two trimesters of a pregnancy, but during the third, the Court concluded that the state’s interest in protecting the potential human life outweighed the right to privacy.
So how did the Court in 1973 find a Constitutional right to an abortion where none had existed before? For that answer we need to look back to a decision the Court made in a 1965 case called Griswold v. Connecticut. In Griswold, a woman named Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. Lee Buxton, a doctor and professor at Yale, were arrested and found guilty for providing illegal contraception to women – a violation of Connecticut law at the time.
In a very consequential seven-to-two decision, the Court ruled in Griswold that the Connecticut contraception law violated the “right to marital privacy” and could not be enforced against married people. In the majority opinion, Justice William O. Douglas wrote that the specific guarantees provided by the Bill of Rights have “penumbras, formed by emanations from those guarantees that help give them life and substance.”
What, exactly, does that mean? The word “penumbra” has Latin roots, and it means, “almost shadow.” As it’s used in the context of the Griswold opinion, it represents implied powers that arise from a specific rule. And that implied power extends the meaning of the rule into its periphery, or penumbra.
Thus, the Griswold Court found a right to privacy in the shadow cast by the Bill of Rights, and with those now-famous words – “penumbras” created by “emanations” – the Court widely expanded constitutionally guaranteed civil rights where none had existed before.
At the time of the Griswold opinion, many people – perhaps most – thought that the Connecticut contraception law should be abolished, but they also believed that the way the Court arrived at the conclusion was wrong. Finding Constitutional rights in the “penumbras” of “emanations” was criticized then, and has been through the decades since.
Nevertheless, Griswold became the foundation for many other subsequent Supreme Court cases, including the 1992 case Planned Parenthood v. Casey, in which the Court threw out Roe’s trimester scheme and substituted a new rule forbidding states to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.
Skipping ahead to 2022, when the Court reviewed the arguments in Dobbs, it concluded that this string of prior cases – reaching back to Griswold – would no longer be the controlling factor. The Court concluded – by a six-to-three vote – that the Mississippi law was indeed constitutional, and in so doing, the Court also overturned Roe and Casey.
Writing for the majority, Justice Samuel Alito explained, “For the first 185 years after the adoption of the Constitution, each State was permitted to address this [abortion] issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.
“At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.”
Alito makes an important point here – the states were in the midst of a political process to decide the issue of abortion, state by state. Roe stopped that process in its tracks.
When the State of Mississippi asked the Court to uphold the constitutionality of its law, the primary argument was that the Court “should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.”
In explaining the Court’s reasoning for overturning Roe and Casey, Justice Alito once again pointed out that the “Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’"
Justice Alito emphasized, “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”
Justice Alito also explained that abortion is “critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
When the Dobbs decision was leaked, the outcry was instant and deafening, and the overarching claim was that abortion was now illegal in the United States. That was never correct.
Here is the important thing to remember. The decision in Dobbs did overturn Roe and Casey. Those who opposed Roe won a victory, but not a complete victory. Those who supported Roe took a loss, but not a total defeat. Despite all the claims to the contrary, this decision did not outlaw abortion.
Rather, as Justice Alito said, the Dobbs decision “heeds the Constitution, and returns the issue of abortion to the people’s elected representatives.”