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As people debate the new abortion case known as Dobbs, a common theme arises. One will ask, “Did you actually read the decision?” The other will respond, “No it’s too long and has legalese, but let me tell you what the court really meant.”
Don’t make fun of that person. They are at least right about the complexity. The decision is more than 200 pages and filled with phrases like “substantive due process” and “stare decisis.” Such phrases take whole semesters to learn in law school. How is the average person supposed to understand it?
To help, here is a plain language summary of the decision, with no added opinion.
Mississippi passed a law allowing abortion for the first 15 weeks of pregnancy. After that, the State claimed it could protect the fetus, due to how much the fetus formed.
An abortion clinic sued, saying two prior Supreme Court cases, Roe and Casey, held a state cannot protect the fetus before “viability.” Viability is the point when a baby can survive outside the womb, understood then to be the end of the second trimester (closer to 27 weeks).
The clinic won in the trial and appellate courts, because of Roe and Casey. The current Supreme Court reversed, finding Roe and Casey got the law wrong and overturned them.
The decision of the current Supreme Court
The Court said a State may protect the fetus at any point because the Constitution has no “right” to abortion in it. A State may also decide the fetus has no rights and keep abortion legal. Since there is no Constitutional right, the Court can’t regulate it. It is up to the people in each state to do that.
What was wrong with Roe and Casey?
First look at what Roe and Casey held.
Roe said that although the Constitution does not say “abortion” or “privacy right,” both were “implied” in the following amendments: The 1st, 4th, 5th, 9th, and in the word “liberty” in the 14th. Roe invented the trimester rule, with viability being approximately the end of the second trimester. Roe found a state can’t regulate abortion before viability, but they can after.
Casey upheld Roe but gave different reasons. It found the right to abortion only in the word “liberty” in the 14th amendment. It threw out the trimester rule for a new rule: A state law may not put an “undue burden” on a woman seeking abortion before viability.
According to the current Supreme Court, here is what Roe got wrong:
Roe wrongly said abortion had acceptance in American history, even though no constitution, court, or scholarly treatise recognized it as a right before Roe. Every Colony and State prohibited or criminalized abortion at some point before Roe was decided.
Roe never explained why the “trimester rule” had any relation to the Constitution.
Roe invented a new law with the trimester rule, which is not the Court’s job. That deprived the people of the democratic political process of deciding if they wanted to protect a fetus, or protect abortion. The Court is not a law-making body; they only interpret the laws legislatures write.
According to the current Supreme Court, here is what Casey got wrong:
Casey accepted Roe’s holding that the right to abortion exists, without examining the reasoning. Casey’s rule that a state can’t pass a law that is an “undue burden” on a woman seeking abortion is too vague and confuses courts. If an “undue burden” is prohibited, what is a “due burden?” It is also a made-up law, which the Court is not equipped to do.
“Why” did the current Supreme Court rule the way it did?
The Constitution protects the people’s rights mentioned in the 1st through the 8th amendments. Also, there are “fundamental” rights not mentioned in the Constitution.
For an unmentioned right to be “fundamental” it must pass a two-part test:
- Is it “deeply rooted in the nation’s history and tradition?”
- Is it “implicit in the concept of ordered liberty?”
Abortion failed both parts of the test, because it was mostly outlawed in our history and tradition, and not part of ordered liberty.
“Ordered liberty” defines boundaries between competing interests. Roe and Casey picked a balance between a woman and the fetus. Some people may wish to allow more abortions than what Roe and Casey allowed, some less. Ordered liberty says let the people’s elected officials decide, not a Court.
Other “competing interests” exists where defenders of Roe and Casey say people will be inhibited from choosing relationships and women will be unable to compete with men in the workplace. Opponents say new family leave, anti-discrimination laws, and safe haven laws level the playing field.
The Court held it should not decide who is right about which interest is more important. The people should decide in each State through their elected officials. The Court must look at what the 14th amendment means, and not what someone wants it to mean. Otherwise, the liberty of the people gets transformed into the policy preferences of individual members of the Court.
On the issue of state power to make laws
When the Court decides if a State has the power to pass a law, it applies this test: Is the law’s purpose “rationally related to a legitimate interest of the state?” The Supreme Court ruled this law passed the test.
Mississippi declared that their interest in keeping the fetus alive after 15 weeks was “legitimate” because:
After 5 to 6 weeks the heart beats, after 8 weeks there is movement, after 9 weeks all physiological functions are present, after 10 weeks organs function and there is hair, fingernails, and toenails, after 11 weeks the diaphragm begins developing, after 12 weeks there is a human form, after 15 weeks abortion requires surgical equipment to crush and tear the child apart.
The Court found it was a “legitimate” power for a State to protect a fetus (the Court did not say they agree or disagree, only that the State as the power to protect). A law against abortion is “rationally related” to protecting the child.
Another state may disagree and allow abortion. It’s simply not up to the Court to decide the moral issue of when an unborn human is protected. It is a legislative issue.
What did the Supreme Court not decide?
The Court did not decide if a fetus is a “person” under the Constitution who has full rights or interests like people who are born.
Roe and Casey set a legal “precedent.” Why did this Supreme Court not have to follow it?
Precedents bind lower courts, but the Supreme Court may always analyze precedent to see if prior courts made a mistake. As an example, in the 1896 case, Plessy v. Ferguson, the Supreme Court found “separate but equal” facilities for people of color to be constitutional. It took almost 60 years to be overturned by Brown v. Board of Education.
Can this Dobbs case be used to overturn cases on gay marriage, interracial marriage, and contraceptives?
The Supreme Court said no because abortion involves the taking of an unborn life. They ruled this decision is tailored to just that and may not be used to overturn any case not involving abortion.
What about the dissenting and concurring opinions issued by individual Justices?
Dissents are interesting reading, but not the law. Even concurring opinions, to the extent they disagree with or try to add to or detract from the main opinion, are not the law.
Thomas De Seno is an attorney, writer and Editor of The Polite Political Page on Facebook.Published in