Roe Reversed. Abortion Issues Returned to the States?

Last week, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization. Finally, the Court has struck down one of its most poorly reasoned cases: Roe v. Wade. In 1992, the Court had an opportunity to do this in Planned Parenthood of Southeastern Pennsylvania v. Casey. It failed, though jettisoning Roe’s trimester system, because a progressive core of justices kept the essence of the opinion that abortion is a fundamental right protected by the Constitution. The Casey decision was written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter (all three less then stellar picks from Republican presidents) and joined by the Court’s old school liberals, Justices Harry Blackmun and John Paul Stevens.

Thirty years later, the Court has finally got it right on abortion:

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.

The Court does a good job of surveying the common law, treatise writers, and state constitutional and statutory law to come to “[t]he inescapable conclusion...that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” (Slip Op. at 25)

The claiming of abortion as a fundamental right was nothing but judicial legislation. The Roe and Casey Courts believed as a matter of policy that women should have access to abortions and they crafted judicial legislation, alien to forms and structures of the Constitution, to achieve this result. The issue was improperly taken from the American people who were actively debating the matter in our 50 laboratories of democracy.

The real clarion call in Dobbs is the concurring opinion of Justice Clarence Thomas. Thomas suggests that the Court reconsider its substantive due process jurisprudence. Substantive due process is the device the Court uses most often to write its policy views into law.

The Fourteenth Amendment contains a clause prohibiting the states from denying anyone due process of law. Throughout most of our history everyone understood that process was a procedural matter. The government could not punish a person for some act or omission, absent the use of established and nondiscriminatory procedures under pre-existing laws. In the late 1800s, the Court created substantive due process. Rather than examining procedures, the Court held that it was empowered to judge the substance or reasonableness of legislation. This doctrine has been used by the Court in various settings and is fraught with peril because it invites judges to second-guess legislatures and write their own “reasonable” opinions into law. Thomas calls for a full reevaluation of this doctrine.

Chief Justice Roberts yet again shows he is no friend of the text of the Constitution and would rather surrender to progressive legal theories than faithfully interpret the Constitution. Roberts chides the majority for overturning Roe and Casey and would have preferred to have issued a “narrower decision rejecting the misguided viability line.” In other words, Roberts would have only decided whether fetal viability appropriately marks a point allowing the states greater flexibility in regulating or prohibiting abortions.

While I cheer the overruling of Roe and Casey, I fear that issues of abortion will not be decided in the states as they were pre-1973. In 2022, it seems the political issue must be a national question. Americans do not appreciate living in a federation where there can be 50 different answers to the same problem. They want one answer. They no longer want to watch as other states grapple with problems and measure how well the legislative solutions work. They do not seem to realize that regional differences in culture, climate, and temperament are critical factors in legislation. The fifty states are like pennies—50 fungible units.

Although Congress has no abortion power, progressives will seek to use the Commerce Clause and the Spending Clause to foist a national abortion law on the people. There are also voices on the right who will try to use similar techniques to ban certain segments of abortions. Hopefully Dobbs will be a return to federalism in abortion legislation; we shall see.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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