In a vote that was telegraphed in advance by the unusual leak, SCOTUS has overruled Roe and Casey, thus ending federal control over the states’ ability to set their own abortion laws.
My original prediction for Dobbs prior to the leak (and I don’t have time to locate it right now) was that Roberts would opt for a narrow ruling that upheld the Mississippi state law involved but left Roe and Casey for another day, and that one or two of the other conservative justices might agree with him and thus the can would be kicked down the road. That didn’t happen. The other conservative justices held firm against the precedents of Roe and Casey, and Roberts himself did exactly as predicted (although he reluctantly concurred with the majority), and therefore the Mississippi law was upheld 6-3 and Roe and Casey have been overturned.
As for the liberal justices, they voted exactly as expected.
There is little doubt in my mind that Roe and Casey were terrible decisions in the legal sense. It used to be that even many legal scholars on the left acknowledged that even if they approved of the result. But after Roe’s having been in place for nearly fifty years, several generations have grown up assuming it will continue to be the law. To me, the legal arguments against Roe and Casey are exceptionally strong, but the political repercussions are potentially as bad as the ruling itself was. It really depends on the reaction of the left – which at the moment is of course fury – and what that might lead to.
AOC has predictably said this:
Speaking outside the Supreme Court, Rep. Alexandria Ocasio-Cortez (D-NY) told protesters that “right now, elections are not enough” to reclaim abortion rights in America “we have to fill the streets.”
Insurrection, anyone? Will AOC be impeached for this? No, of course not. It’s particularly horrendous that she’s saying those words in light of the recent arrest of a man planning to assassinate Justice Kavanaugh, but hey, rabble-rousers gotta rabble-rouse. The real question is whether the protests will amount to anything, and what effect the Dobbs ruling will have on the vote in November.
What will different states end up doing about abortion, now that they are able to enact whatever abortion laws they wish, from strict to permissive? Blue states can continue to have abortion on demand, so most Democratic voters won’t find that this limits abortion in their states at all. Red states can do what they want, which will be varying degrees of prohibition that remain to be seen. More moderate states will almost certainly be in the middle. This is where we would have been, I think, without the fifty years of turmoil that Roe engendered. But now turmoil seems to be rampant in the US, and not just about abortion.
One fear I have, as an older person, is that illegal abortion will take the place of legal abortion and the results will be quite a few deaths of pregnant women. Those who believe that every abortion is murder probably will say it’s a tradeoff they’re willing to make to preserve the lives of so many unborn. I’ve written a great deal on abortion, and I refer you to this list if you want to learn them, with a more personal story here.
My hope – although I think it’s a vain one – is that this ruling will cause a lot more people to use birth control more assiduously. That wouldn’t eliminate unwanted pregnancies, but it would help reduce them. If abortion isn’t such an easily available backup, logic would dictate that might happen – but sex is an area where logic so often falters.
As for the decision itself, I haven’t read the whole thing, just short parts of it. Here are some excerpts:
…[I]n 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature…
…Roe…It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.
Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” and it sparked a national controversy that has embittered our political culture for a half century.
Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the Members of the Court split three ways…
Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.
As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly…
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…
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.
How many people even understand that’s what Dobbs now does – “returns the issue of abortion to the people’s elected representatives”? I would guess a lot of people think that Dobbs bans abortion, which it does not. The important issue of who decides – the federal judiciary or the state legislatures – which is the heart of Dobbs, is probably of little importance to a great many people, who want what they want.
[NOTE: Trump’s SCOTUS appointments led directly to Dobbs, as many have pointed out. But another important player was McConnell – whom many conservatives nevertheless detest – because he agreed to block Obama’s nomination of Merrick Garland to SCOTUS.]
