WASHINGTON — Minutes after the U.S. Supreme Court released its long-awaited decision in Dobbs v. Jackson Women’s Health Organization, Ed Whelan praised the landmark ruling, which upheld Mississippi’s law barring abortions after 15 weeks and overturned the high court’s own 1973 ruling in Roe v. Wade legalizing abortion nationally, as “a crowning achievement of the conservative legal movement.”

“[T]he Supreme Court has — at long last! — overturned Roe v. Wade and restored abortion policy to our democratic processes,” said Whelan, in a June 24 post on National Review’s legal blog Bench Memos.

In one of the most consequential rulings in Supreme Court history, Justice Samuel Alito, writing for the majority, swept aside legal precedent that established and buttressed a constitutional right to an abortion amid a half century of passionate debate and activism.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Justice Samuel Alito wrote for the 79-page majority opinion, signed by Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, with a concurrence by Chief Justice John Roberts. Planned Parenthood v. Casey is the 1992 Supreme Court decision that established the “undue burden” standard for testing the constitutionality of state laws designed to restrict abortion, and blocked statutes that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Alito noted  that the court respected legal precedent in groundbreaking cases like Roe and Casey. But when  it erred in issuing such rulings, it needed to acknowledge that failure and address it, not prolong it.

A stinging dissent written by Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor disputed Alito’s assessment of Roe and Casey. Breyer argued that those rulings properly addressed both the rights of women and the state’s interest in protecting “potential life.”

“Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of,” read the dissent. 

 

Seismic Impact

The seismic impact of the ruling had only begun to register in the corridors of power in the nation’s capital. In an address to the nation following the release of the Dobbs decision, President Joe Biden vowed to secure federal legislation protecting legal abortion. 

“The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law,” said Biden.

“And if Congress, as it appears, lacks the vote — votes to do that now, voters need to make their voices heard.”

But pro-life legal scholars celebrated the conclusion of five-decade legal battle to defend the unborn, even as they girded for a fight that has already moved from the court to Congress and statehouses across the nation. 

“The court rightly recognized that issues like abortion are rightly preserved for the states under the 10th Amendment to the Constitution, and it has returned this issue — one that has divided the nation and enflamed its passions — back to the people and their elected representatives,” said Sarah Parshall Perry, senior legal fellow at the Heritage Foundation.

“The decision in Dobbs v. Jackson Whole Women’s Health is a timely reminder of how federalism and our system of representative government ought to work.”

Gerard Bradley, a professor of law at the University of Notre Dame, offered a blunter summary of the decision’s practical impact.

“States will now be able to all-but-ban abortion if they wish to, with the caveat that there must be a life-of-the mother exception,” Bradley told the Register. 

“In the short run, I am sorry to say that the Supreme Court signals clearly that states may also permit abortion-on-demand.” 

Legal analysts contacted by the Register confirmed that the opinion released on June 24 was “essentially the same” as the draft leaked almost two months ago, but with additional comments responding to the dissenting justices.

Justice Alito’s “strongest argument … is surely that Roe was the worst reasoned opinion in the Court’s history, and this point is joined inextricably to showing that there is zero support in constitutional text, structure, history or even in the American political tradition for finding a right to lawful abortion,” said Bradley. 

“In Roe, dissenting Justice Byron White described the majority opinion by Justice Blackmun as an ‘exercise in raw judicial power.’ White was right.”

 

Dissenting Arguments

The Dobbs dissent did not provide a comprehensive response to the plurality’s deeply researched findings. Instead, the dissent focused on the practical impact of the Dobbs ruling, warning that the demise of Roe and Casey radically abridged the basic rights and autonomy of American women.

“As of today, this court holds, a state can always force a woman to give birth, prohibiting even the earliest abortions,” read the opinion. 

“A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

Roe and Casey, they asserted, had properly safeguarded “each woman’s reproductive freedom,” and secured “[t]he ability of women to participate equally in [this nation’s] economic and social life.”

The Dobbs case asked the high court to consider whether all pre-viability prohibitions on elective abortions were unconstitutional. In a concurring opinion, Chief Justice John Roberts concentrated on that question, finding that the Mississippi law should be upheld but holding that this did not necessitate overturning Roe’s constitutional right to abortion. Alito’s majority opinion concluded differently, and established an entirely new legal framework that allows states enormous latitude in regulating or barring the procedure.

Alito anchored much of his argument for dismantling Roe and Casey on the damaging consequences wrought by the court’s poorly reasoned rulings on abortion that lacked both historical context or support from the constitution itself.

“In this case, five factors weigh strongly in favor of overruling Roe and Casey,” read the majority opinion. These are “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance,” a reference to the need for predictability in law-making.

Alito’s strongest argument is that the court, when deciding Roe and Casey, failed “to lay any legal foundation for abortion in the arenas that are required for claiming that the 14th Amendment’s protection of ‘liberty’ includes abortion,” Helen Alvaré, a law professor at George Mason University, told the Register, noting the extensive historical record laid out in the majority opinion. 

 

Rebutting the Dissent

The court’s liberal wing warned that the demise of Roe and Casey would also undo landmark decisions that secured access to contraception and permitted same-sex couples to marry. But Alito disagreed with this judgment, and took issue with the attempt to link these cases with Roe and Casey. 

“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 Roeand Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being,’” Alito wrote.

“The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life,” added Alito. “Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life.’” 

He noted that the Casey abortion ruling clearly recognized that “[a]bortion is a unique act” because it terminates ‘life or potential life.’”

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito asserted.

Notre Dame law professor Sherif Girgis summarized the legal rationale underpinning Alito’s assertion.

“While the Court did say that unwritten rights must have deep roots in history to be recognized by judges, it granted for argument’s sake that some rights that aren’t themselves deeply rooted (like contraception or same-sex marriage) might be ‘integral’ to a broader right to privacy or autonomy that is deeply rooted,” Girgis told the Register. “What takes abortion out of the realm of privacy (or autonomy), the court said, is its arguable harm to a third party, the fetus or unborn child. Moreover, at a practical level, there is no political movement to ban contraception or interracial marriage.” 

But some legal scholars expressed a measure of skepticism on this point. 

“Justice Thomas alone expressed the view that there are no substantive ‘liberties’ that the 14th Amendment’s ‘due process’ clause protects. It only protects fair legal process,” Alvaré told the Register. “But I think the dissent is more on point than Alito regarding the possibility that Dobbs severely undercuts Obergefell in particular.” Obergefell v. Hodgesis the 2015 decision that legalized same-sex civil marriage.

While contraception, “is at least a private act in the home, a place where there are more privacy guarantees,” noted  Alvaré, “marriage involves public recognition.”  Obergefell “is almost entirely built on Casey’s rationale that individual rights respecting sex and identity creation are fundamental constitutional rights. And Casey is gone.”

 

New Constitutional Standard

After Alito addressed the outstanding arguments opposing any change in the court’s abortion jurisprudence, he proceeded to lay the groundwork for a new standard for assessing the constitutionality of laws banning or regulating abortion. 

“In overruling Roe and Casey, the Court in Dobbs sets forth ‘rational-basis review’ as the appropriate constitutional standard for review of challenges to abortion laws,” wrote Whelan. “Under this very deferential standard, a law governing abortion, like most other laws, ‘is entitled to a strong presumption of validity,’ and ‘must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.’”

According to Alito’s decision, these “legitimate state interests” include “respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”

Alito concluded that “these legitimate interests justify Mississippi’s Gestational Age Act.” 

Other legal experts stressed that the states would likely have considerable freedom to write abortion laws.

“This standard is very deferential to the judgments made by legislators, and so is an easy threshold for a law to clear (particularly because the Court has already recognized protecting fetal life as a legitimate state interest),” Jennifer Bradley Lichter, deputy general counsel of The Catholic University of America, told the Register. 

 

‘Good News’

But scholars will continue to debate the ruling’s impact on the court’s own legitimacy, as the nation adapts to a new normal on abortion law and partisan groups attack the justices for playing politics. 

Pro-life lawyers strongly disagree, insisting instead that the court is actually disengaging itself from abortion politics. Tom Brejcha, the president of the Thomas More Society, which has defended pro-life plaintiffs, told the Register that the ruling “strengthens the court. It shows that errors can be corrected.”

“The most important message is [that abortion] has now become a political issue and a state-by-state issue. It is a watershed event,” Brejcha said.

Alvaré, for her part, described the ruling as an exceptionally positive legal development.

Asked what Americans should make of the fact that the court has overturned a constitutional right it had created a half century ago and buttressed since then, Alvaré, replied that Roe and Casey's demise was "Good news."

"Judicial decisions built on nonsense (no text, no history, no precedent) will eventually disappear, and an issue that should never have been taken from the people has returned to them!”