Dobbs Case Sets Forth New Abortion Principles

Abortion is, in my view, not an enjoyable topic of discussion. The right to abort a pregnancy ignites deeply-held views and emotions in our great American society. In short, the topic is a lightning rod of controversy. My personal views have vacillated over the course of time. This blog is Christian. Therefore, my view is that most abortion is murder (especially if there is no threat of injury or death to the mother). But, as a man of faith (first) and man of the law (second), I also respect all sides, even if I disagree.

I have seen some news blurbs that indicate that the new opinion of Dobbs v. Jackson Women's Health Organization written by Justice Samuel Alito could spur a new wave of adoptions. From all I understand, there are many couples in this world who would love to step up and adopt children. As expensive and cumbersome as adoption can be, any increase in adoption or a streamlining of the process of adoption would be a welcome change in society in my view. Many lives have been changed forever for the better because their early years were molded by adoptive parents who provided a much better childhood than the biological parents could have hoped to provide. And those biological parents who are willing, despite all of their emotional will, to surrender parental rights and allow for adoption to happen, are better people too for their actions.

Even though the topic of abortion itself is not enjoyable to discuss, Constitutional law and United States Supreme Court opinions are both interesting and enjoyable. And they are a part of this blog I publish. Therefore, with this topic being so prominent at this point in time, here I go with a summary of the new standard in U.S. Supreme Court abortion law:

In short, Justice Alito, in the majority opinion, reexamines the issue of abortion, American history, and Fourteenth Amendment jurisprudence - largely returning the legality of abortion to the states. The Dobbs opinion notes that Roe v. Wade held that the right to have an abortion is part of a right of privacy springing from the First, Fourth, Fifth, Ninth, and Fourteenth amendments to the Constitution of the United States.

In pertinent part, Amendment 14 (adopted in 1868) provides:

"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."

Planned Parenthood of Southeastern Pennsylvania v. Casey, a split decision of the court issued in 1992, based its decision on the theory that the right to obtain an abortion is a part of the "liberty" mentioned above. It changed some of the intricacies of when abortion is allowed but upheld the core part of the controversial 1973 opinion: Based on stare decisis, a state could not constitutionally protect life before viability. 

If you know anything about law, you may wonder about stare decisis: Previous rulings and law must be followed as precedent. However, Justice Alito notes that stare decisis "does not compel unending adherence to Roe's abuse of judicial authority." Stare decisis requires an assessment of the strength of past decisions.

Dobbs states that Roe is overruled: The United States Constitution does not confer the right to obtain an abortion.

And, with respect to anyone who thinks the Roe decision was well-reasoned, it was not deemed a strong ruling by our nation's highest court. A strong summary of Justice Alito's reasoning comes on page 5 of the just-published pdf:

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 law at issue in Dobbs was the Mississippi Gestational Age Act, which outlaws most abortions performed after the fifteenth week of a pregnancy. Respondent Jackson Women's Health Organization, an abortion clinic, challenged the act in federal district court and won. Their win was affirmed by the Fifth Circuit Court of Appeals but reversed by Alito & Co.

A final point that came out of Justice Alito's opinion beginning on page 30 was a rebuttal of the argument that the right to abortion is a part of 

... a broader entrenched right ... a right to privacy ... the freedom to make "intimate and personal choices" that are "central to personal dignity and autonomy" ...

The point in response: Abortion destroys the potential life of an unborn human being. It involves a critical moral question that comparable cases cited by Roe and Casey do not involve. 

And this final point, combined with a glance at American history, is the reason we have a new standard regarding abortion rights in America.

The impact of this landmark court decision is yet to be seen, and such impact will likely vary from state to state. But change is in the works. Despite some controversy surrounding Dobbs, the Supreme Court will remain a huge part of our government and a powerful part of this American life.

James A. Rose

Publisher