Reflections on Dobbs, part 4: the Court's reasoning

Now we come to the ruling itself. The case began after the state of Mississippi enacted a law in 2018 banning most abortions after the first fifteen weeks of pregnancy. The state's only abortion provider, Jackson Women's Health Organization, sued State Health Officer Thomas Dobbs on the grounds that the law violated the constitutionally-protected right to abortion guaranteed in Roe v Wade. Mississippi in turn asked that the law be upheld and Roe struck down. As the case was being argued in the lower courts, these courts had granted injunctions to suspend enforcement of the law. Near the end of 2021, the case was heard by the Supreme Court, the highest court of appeal in the United States, with the decision expected this year. At the beginning of May a draft copy of the Court's ruling was leaked to Politico, in an unprecedented breach of confidentiality. The Court released its decision in Dobbs v Jackson Women's Health Organization on 24 June 2022, and, as expected, it struck down Roe v Wade. Here are the key paragraphs of the decision:

We hold that Roe and Casey must be overruled. 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” . . . .

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. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also 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.”

Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” . . . That is what the Constitution and the rule of law demand.

It is worth noting that Dobbs, in speaking of "Roe's abuse of judicial authority," agrees with Justice Byron White's dissenting opinion in that earlier case five decades ago: "As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court." Dissenting opinions do not, of course, have the force of law or precedent because their reasoning has not persuaded the majority of the Court. However, if a ruling is eventually reversed, dissenting opinions attain greater significance as sources for the new majority or concurring opinions.

That the courts exercise judicial review is nowhere mentioned in the text of the constitution. In terminology more often used in Westminster democracies, it might be labelled an unwritten convention of the constitution developing out of and around the written document. The Supreme Court first exercised judicial review in the famous Marbury v Madison case of 1803, in which the Court invalidated the section of the Judiciary Act of 1789 which had granted it original jurisdiction in issuing writs of mandamus. Judicial review might be said to follow logically from the fact that the Constitution of the United States is a legal document binding on public office-holders. Documents do not interpret or enforce themselves. Some institution is needed to ensure that officials live up to their provisions, in recognition of the primacy of the rule of law.

However, in a democracy, in which self-government or representative government is paramount, there is good reason for the courts to be restrained in exercising judicial review. Certainly the courts are obligated to protect the rights and liberties of citizens against statutory violations of said rights and liberties. As a constitutional democracy, the United States recognizes certain core freedoms necessary to its functioning as such. These are listed in the first ten amendments to the Constitution, adopted in 1791 and known collectively as the Bill of Rights. After more than two centuries, there is a consensus in the larger political culture in favour of these freedoms, which properly lie beyond the competence of the legislative bodies representing the citizens. Freedom of religion, of speech, of the press, and so forth are properly inviolable.

However, when a particular group asserts a right not contained in a written constitution or previously unacknowledged in the unwritten constitution, such a claim must be adjudicated by a generally recognized authority. At the outset such a claim to a right is only that: a claim. Those making such a claim must make their case in the proper forum along with those who might have legitimate reasons to contest the claim. Justice requires, not simply acknowledging the claim, but hearing all sides, weighing the issue according to recognized principles of justice anchored in the law, and deciding whether the claimed right, either in whole or in part, should be recognized as positive law. In the vast majority of such cases, a representative body is the most appropriate authority to weigh such a claim, either by enacting a new statute or initiating an amendment to the Constitution. If a given polity is divided on the claim, neither side is likely to obtain the entirety of what it is seeking. But such outcomes are in the very nature of democracy, in which compromise enables some measure of conciliation in the midst of disagreement.

When a polity is sharply divided on an issue, two institutions internal to government may succumb to a temptation which, far from settling it, ends up exacerbating the division. 

The first of these is the court system. In the absence of a consensus favouring a newly claimed right, the courts may assume that they can cut through this absence and, in effect, change the constitution without having to grapple with the messiness that is democratic deliberation or needing to obtain the qualified majorities required to change a constitutional document. Rather than patiently building a consensus where none exists, judges unduly assume that they can create one by fiat. As we have seen, the justices in Roe and Casey proclaimed and upheld a right for which there was and remains no consensus.

The second of these consists of the legislatures themselves. Under a constitution permitting judicial review, elected representatives are tempted to defer to the courts as a way of avoiding taking responsibility for deciding a controversial issue. If the courts decide one way or the other, and if a segment of the electorate is unhappy with the decision, an officeholder can simply shrug his shoulders and protest that it was taken out of his hands. This arguably makes a mockery of the democratic process. Yet some observers are claiming that the Supreme Court's decision in Dobbs v Jackson is a step backwards for democracy, while others argue that Dobbs represents a vindication of democracy. The ruling itself makes the latter claim: "It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."

Unfortunately, Dobbs promises to be just as divisive as Roe and Casey were, and the abrupt change of heart in the Court may effectively erode confidence in its status as an impartial arbiter. This is an issue raised in Casey to which I will return in the next instalment.

Next: Reflections on Dobbs, part 5: was it rightly decided?

Previous: Reflections on Dobbs, part 1: creating and overturning precedents 

Reflections on Dobbs, part 2: 'rights talk' and partisan polarization 

Reflections on Dobbs, part 3: Planned Parenthood v Casey