Since the draft decision overturning Roe v. Wade was leaked to Politico, I have talked to a lot of people about it. My pro-choice friends are as outraged as my pro-life friends are pleased. References to having “won” or “lost” are as common as disparaging comments about “the other side.”
One thing absent from the conversations is a detailed discussion of Justice Alito’s draft opinion. With very few exceptions, both sides ignore details. All that matters is the outcome.
Ignoring the legal arguments cited in support of the decision is unfortunate. Regardless of your position on abortion, it is important to acknowledge that the Court was doing what it is supposed to do—considering legal arguments related to the case before it and deciding the case based on its interpretation of the law and the Constitution.
In the case of Dobbs v. Jackson Women’s Health Organization, Justice Alito, apparently joined by four of his conservative colleagues, decided that the legal foundations for Roe v. Wade were wrongly reached in 1973 and should be overturned. Looking at the legal issues rather than whether we support abortion, is Justice Alito right?
The right to an abortion is not established in the Constitution in the same way as the right to bear arms, free speech, or freedom of religion. To establish the right to abortion, the Court in 1973 interpreted part of the Constitution, principally the Due Process Clause of the Fourteenth Amendment, as creating a right that was not explicitly referenced. That right was the “Right to Privacy.” It is the basis for the right to abortion and serves as the foundation for several other rights, including interracial and same sex marriage.
The key finding in Roe is that: “State criminal abortion laws, like those involved here [in effect in 1973], that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
The” bottom line” in Dobbs is not that the case bans abortion, it is that it returns the right to regulate the practice to the states. Abortion rights will remain in states, like Maryland, which have not enacted legislation restricting or banning abortion. The right will be restricted or eliminated in other states. Currently 23 states have such laws, including four that have passed a state constitutional amendment declaring that their constitution does not secure or protect the right to abortion.
The draft opinion indicates that for a right to be found in the Due Process Clause of the Fourteenth Amendment, the rights had to have been largely established at the time the Fourteenth Amendment was adopted. In overturning Roe, Justice Alito found that the right to an abortion was not well-established in American law at the time the Fourteenth Amendment was enacted,1868. He argues that because the right was not well-established in 1868, the right to an abortion cannot be read into the Constitution.
If formally adopted by the Court, the decision in Dobbs will be difficult for a future Supreme Court to overturn. The opportunity for such a reconsideration may also not arise for several years given the current ideological makeup of the Court and the unlikelihood of a liberal majority in the next several years.
One way to expedite a reversal of the Dobbs decision would be for Congress to expand the size of the Supreme Court. That action, popularly referred to as “Court packing,” is unlikely given the party split in the House and Senate and the probability of a Republican majorities in both in 2023.
The other way to reverse Dobbs would be to pass a Constitutional amendment. That option is not being discussed at this point, given that approval requires the votes of three quarters (38) of the States. It is currently inconceivable that a pro-choice amendment will be approved in the next 10 years.
That leaves pro-choice advocates—supporters of women’s rights—one avenue to limit the impact of Dobbs. That avenue is changing state laws by electing executives and legislators supporting the right to abortion.
The pro-choice v. pro-life fight is one that will be fought in the states. Proponents on both sides are well-advised to read the Dobbs opinion and shift the focus of their advocacy to states rather than the federal government. Absent the restoration of a federal right to an abortion, the issue is one that the states will control.
Unless the role of the Supreme Court is changed from that of an interpreter of laws to some sort of super-legislature, the law and Constitution, as interpreted by the Court, will control the right to abortion.
J.E. Dean is a retired attorney and public affairs consultant writing on politics, government, nature, and other subjects.
DEIRDRE LAMOTTE says
We are talking about women being treated as breeding stock by a major political party and their judges.
This should comfortably qualify the USA as a s**thole country.
John Dean says
Thank you for your comment. I am pro-choice and will regret the overturning of Roe if that is what the Court does. My piece is about the rationale in Alito’s draft opinion and the difficulty that the Court will have in restoring the right to abortion. The point of the piece is that the draft opinion returns the regulation of abortion to the states. Those of us who believe in the right to choose will need to focus on passing state laws because the current political situation in Washington.
I am not ready to characterize the US as a “s**thole country.”
Deirdre LaMotte says
Because you are a man and will never be forced to
carry an unwanted pregnancy. There is a place in
hell waiting for those who feel they are “God’s
chosen” in Christian Dominionism; infiltrating civil
society to conquer laws and procedures that do not adhere to their doctrine.
So much for the separation of State and Church.
The constitution and our nation is being trashed
by these fat bottomed theocrats and their subversion
of women. It is vile. Abortion is going nowhere.
Just sit and wait for the litigation when a pre teen is forced to carry a child through rape or incest. Or
a women dies in a back alley abortion. Or a women is arrested for seeking an abortion over state lines.
The war has started and there is no turning back.
Linda Baker says
Well Deirdre if they don’t want to be breeding stock then they should abstain or get sterilized, not KILL another human being. That my dear is called “a crime against humanity!”
Jim Moses says
I really wish someone could explain to me why this is even an issue? The position that “life begins at conception” is based in one particular religion. (Can anyone recall the last march of Atheists for Life?”) The first sentence of the First Amendment is there for a very good reason.
John Dean says
Thank you for your comment. I had not seen that argument before. Thanks for raising it.
Carol Voyles says
Religions around the world have different views on this matter, and freedom of religion is guaranteed in our Constitution.
John Dean says
Thanks for reading the piece and adding to the conversation.
Barbara Denton says
Judge Alito’s draft opinion was absolutely correct. The court in 1973 acted as a super-legislature when they came out with their Roe v Wade ruling. Abortion is a matter for the states. Marylanders need not fear. With our abominable left wing legislature they will be able to practice infanticide to their hearts content. In other states where the right to life is recognized this will not be the case. What we need to watch for in this state is taxpayers being forced to participate in murder. A bad ruling in 1973 will finally be corrected. The party who leaked this draft should be found and prosecuted to the fullest extent of the law. Those who are doxxing the Supreme Court justices should also be arrested as they are breaking the law.
Tom Alspach says
Barb, please hold on to your statement that “abortion is a matter for the states” and trot it out again when your party takes control of the Senate and the House, and proposes a nation-wide ban on all abortion, without exceptions. Don’t think we will be hearing the right wingers advocating for “states’ rights” then, but trust we will have your support for the rights of Maryland. Thanks.
John Dean says
Tom, excellent point. McConnell’s recent comments are consistent with the fears that a Republican administration could enact a nationwide ban on abortion or even contraception.
Thanks for reading the piece and commenting.
Linda Baker says
Barbara, I agree wholeheartedly with everything you said!
Deirdre LaMotte says
You are wrong and you are the problem because of the lies. It is not your business what a women chooses.
And others have no business forcing you to go against
whatever choices you choose. We live in the 21 century not, last time I saw, Romania with forced births.
Roe has been our Law for 50 years. Never has the Supreme Court weaned personal freedoms, until now. Abortion is not a states rights issue, it is a human rights issue. Any person, man or woman, has autonomy over their body. Period.
Henry Herr says
Just a thought, if the matter is for the states to decide, why won’t Republicans put it on a ballot for the public to decide in their states?
Something similar to a simple yes no as Maryland did with Sport Gambling. Simply put, they will never put it on the ballot because 7 in 10 do not want Roe v Wade overturned. This is not just a States Rights issue.
Barbara Denton says
Abortion is on the ballot every time there is an election. Candidates are vetted and should give their truthful opinion of whether or not they support abortion. As to 7 in 10 not wanting Roe v Wade overturned you are mistaken. Dig down into those surveys and look at the qualifiers. The interpreters of the surveys would not do that as it did not support the outcome they wanted. I would be happy if they held a referendum on abortion in Maryland along with the qualifiers that go alone with it. Rape, incest etc. need to be taken into consideration. Deciding when your baby is viable that it is too inconvenient is not a qualifier. Saying a baby can be murdered after a live birth is infanticide it is not an abortion. That can be done in Maryland now much to the dismay of ethical, moral people. It is a states rights issue and the Federal government should never have entered the fight. The privacy clause in 14th amendment is too big a stretch to be countenanced. Using contraception would prevent this problem. It is readily available to all but we still have this problem. When Roe v Wade is overturned it will not affect the abortion availability in MD. The killing of another human being is not a personal freedom. The man or the woman has the ability to say no or use contraception. After conception of the new life has rights also. There is nothing in the Constitution that support abortion which is the killing of a human being.
Linda Baker says
Mr Dean, if you feel “The Right to Privacy” under the 14th amendment is a reason to allow abortions, where were your arguments when they were forcing vaccines on people, who for medical or religious reasons did not want to take one? You only stand up for “crimes against humanity”? I’m being serious here. You stand up for abortions that take another life growing inside someone. It’s a woman’s choice. Yet, where were our choices and your support of the “Right to Privacy” when vaccines (experimental at that) were being mandated? I am disgusted with society right now! There is no respect for life or our children right now. Women are having late term abortions up to their due date. It needs to stop!
John Dean says
Thanks for your comment. Please note that my piece did not defend the Alito draft opinion, but rather attempted to explain it and to share my opinion that, if issued, will be difficult to overturn. That is why I suggest it is important to understand the opinion and, to defend the right to abortions, focus on the States.
I believe there are “over-reaches” in the draft opinion. I am still reading about it. Given the criticism of the draft that has been written to date, the decision, if issued, will likely be modified.
John Dean says
Thanks for reading the piece and commenting. I politely disagree with you. The 14th amendment (due process clause) does not guarantee people the right to infect others by not wearing a mask in the midst of a pandemic.
Also, I believe women having abortions “up to their due date” is extremely rare–virtually non-existent.
Ideally, a Constitutional amendment would be enacted to establish the right to abortion to end the current debate.
DEIRDRE LAMOTTE says
The Republican focus on late term abortion as an argument against abortion is incredibly disingenuous.
A simple review of reputable public health information shows 93% of abortions take place at less than 13 weeks
gestation while less than 1% are late term, which is after 20 weeks. in these cases it usually performed due to threat to a woman’s health or a defect in the fetus’ incompatible with long term survival. it is an incredibly
difficult decision for everyone involved and it should be made by the fetus’ host, the woman, and her heath care provider, especially not you or some politician who has no medical expertise in the woman’s lived experience.
Linda Baker says
Deirdre, Again, she should close her legs or get sterilized. Not use abortion as birth control!
Also, in reference to a previous post you made, abortions will continue to be allowed for incest, rape, or medical condition that may affect the mother or unborn child. But not for birth control!
Stephen Schaare says
Linda Baker with a “three pointer from downtown” Whoo-hoo!
Sweet!
Deirdre LaMotte says
Forced vaccines? When did pregnancy become
contagious?
Henry Herr says
What worries me is if Roe is overturned, body autonomy is also overturned and handed back to the states. Some states are already looking to ban certain forms of birth control. Will a woman be charged for murder for a miscarriage? It certainly opens the door for that.
What bothers me, is the “pro-life” logic. Will banning abortion actually save lives? Is there any evidence that it will? Legal abortion will end, but as seen in the past, that will not end abortions in those states.
I am pro-life. That doesn’t mean I am against pro-choice. My position has been to see how to support women so that they do not need to make the choice to have an abortion. They are still able to make the choice.
For example, if a woman wants an abortion because she can’t afford to have the child or more children. My position is be to financially assist the woman with childcare and food. Help take some of that stress away. See what she needs and help her. If a woman wants an abortion because she doesn’t think she can be a mother yet. My position is to assist her in anyway she would require. Parenting classes, community support etc.
Isn’t being pro-life supposed to mean helping the mother have a good life as well? The idea that banning abortion is somehow “pro-life” has always been ridiculous to me. Just as banning guns, alcohol and drugs doesn’t stop gun violence, alcohol, and addiction; banning legal abortion won’t stop abortion.
John Dean says
Thank you for this comment. I agree with you that banning legal abortion won’t stop abortion. I also believe that if abortion is illegal, the government has an obligation to guarantee health care, food, housing, and education to the children and families involved. I find it ironic that some of the legislators opposing abortion regularly vote against federal domestic programs that provide the assistance that seeks to keep children and families out of poverty.
Linda Baker says
Henry, I FINALLY agree with some of what you are saying. I support assisting mom’s financially if needed, private/open adoptions, etc. So you have a good point there. However, to put Miscarriage in the same category as Abortion is not even close to being the same. Miscarriage the baby is expelled, most of the time before end of first trimester, and you can’t stop it 99% of time. Usually if miscarriage occurs then there was a medical issue that caused it, no control over that, it’s spontaneous. The baby has usually died in the womb and the uterus expels it.
Henry Herr says
I think it’s a fair assessment not to place abortion and miscarriage in the same category, but I do think they can be related. For example, this woman was convicted of manslaughter after a miscarriage. https://www.usatoday.com/story/news/nation/2021/10/21/oklahoma-woman-convicted-of-manslaughter-miscarriage/6104281001/
I’m not sure how far it will go. Judging a woman’s actions to determine if they should be tried for manslaughter for a miscarriage? When Roe is overturned, the limits will be pushed. Some states are talking about banning IUDs, Plan B, and other forms of birth control as well.
States are also working on laws to charge people for medical treatment in different states. I am firmly against this government overreach, and firmly for finding solutions to save lives and not put more in jeopardy. I wish Democrats and Republicans could have that honest conversation, but instead they will attempt to ban abortions as if that’s a viable solution to saving lives.
DEIRDRE LAMOTTE says
as someone beautifully said :
The “unborn” are a convenient thing to advocate for. They never make demands of you; they are morally uncomplicated, unlike the addicted, poor or incarcerated; they don’t resent your condescension or complain that you are not politically correct; unlike orphans, they don’t need money, education, or childcare; unlike “aliens”, they don’t bring all that racial, cultural, and religious baggage you dislike; they allow you to feel good about yourself without any work or maintaining relationships; and when they are born, you can forget about them because they cease to be unborn. You can love the unborn and advocate for them without substantially challenging your own wealth, power, privilege, without reimagining social structures, or making reparations to anyone.
The sick? The poor? Prisoners? Immigrants? All specifically mentioned in the Bible? They are thrown under the bus for the unborn.
And don’t forget the important focus: controlling women.
John Dean says
Thanks for this comment. I am no expert, but it looks like someone from Chestertown.
Eva M. Smorzaniuk, MD says
Since I’m not an attorney let alone a Constitutional scholar, I would appreciate an explanation of why the ninth amendment can’t be used to protect the right of privacy. To my understanding, the ninth amendment states that citizens are not limited to only the rights enumerated in the Constitution, those of life, liberty, and the pursuit of happiness. Shouldn’t the right to a private life be supported by this?