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SO WHAT IS THE CASE THAT OVERTURNED ROE v WADE? CAN PRESCEDENT BE OVERTURNED?

 

August 1, 2022 | View PDF



That case recently decided is DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. The Gestational Age Act of Mississippi was challenged by a Mississippi abortion clinic and one of it’s doctors. The Act states “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–19. Justice Alito wrote the majority opinion in which all conservative leaning justices including Chief Justice Roberts agreed. Additionally, Justices Thomas, Kavanaugh and Chief Justice Roberts wrote individual concurring opinions meaning that they agree but may write their own opinion to include similar or additional legal theories as to why they concur with the opinion of Justice Alito, who was tasked to write the opinion by Chief Justice Roberts. All liberal leaning Justices, Breyer (since retired), Sotomayer and Kagan wrote a dissenting opinion which I will not quote for purposes of this article. The total pages of the majority opinions and dissenting opinion number 213 pages, so hopefully I can do justice in condensing this into a few paragraphs.

The majority opinion is that the United States Constitution does not confer a right to abortion. Justice Kavanaugh additionally stated that the Constitution is neither pro life nor pro choice. Justice Alito, summarizing the argument for Roe V. Wade says that the abortion right arises out of a woman’s right to privacy. He additionally quotes the 1992 case of Planned Parenthood of Southeastern Pa v Casey (hereinafter Casey), that it adds abortion as a “liberty” under the 14th Amendment and it’s Due Process Clause. Casey otherwise supports itself on the basis of stare decisis which continues to propagate law based on precedence (Roe v Wade). Secondly the Court looked to historical roots of abortion rights which it does not find. Due Process is discussed as a division of two categories, those being the first eight Amendments to the Constitution and rights believed to be fundamental, but not mentioned in the Constitution. The Court looked for other precedent which may give a right to abortion; it found none.

The Court stated that the Court decision in Roe v Wade was wrong. Just because precedence has been set does not make it right for all time. Justice Alito said, “Some of our most important constitutional decisions have overruled prior precedents.” Justice Alito went on to say, “Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Casey, 505 U. S., at 995–996 (opinion of Scalia, J.). Together, Roe and Casey represent an error that cannot be allowed to stand.

As an example, the Court specified another wrong decision from the late 19th Century in Plessy v Ferguson (Plessy). Plessy said that the education for black and white children should be equal but separate. Brown v Board of Education, righted that wrong over fifty years later.

The majority opinion noted that without grounding in any “constitutional text, history or precedent”, the effect of Roe v Wade was set out as a “legislative” decision in the manner in which it was formulated. An arbitrary viability line was set by the court regarding the life of an unborn child and did not consider advances in medicine that might make the chance at life possible at an earlier gestational age than at the time of the decision. The Casey case, almost twenty years later, criticized the trimester scheme of Roe v Wade, abandoned the reliance on “right to privacy” but held on it’s “undue burden test” and by virtue of stare decisis.

“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. “

The defenders have said, “Without the availability of abortion, they maintain, people will be inhibited from exercising their freedom to choose the types of relationships they de- sire, and women will be unable to compete with men in the workplace and in other endeavors. “

The Solicitor General, whose job it is to argue cases on behalf of the United States, among other arguments said that to overrule Roe and Casey would threaten other rights found under the Due Process Clause. The Court pointed out that the question of the case has to do with the Constitutional right to abortion and nothing else. While Casey identified that political thinking or the opinion of the public may influence a decision, the Court stated that it cannot be influenced by such. Certainly, the conservative justices have paid the price of independent thinking in being threatened, especially with Justice Kavanaugh having a stalker that surrendered before he carried out the possible murder of the Justice or those that chased Justice Kavanaugh from a restaurant.

Finally, the Court said in the majority opinion, “(e) Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives. “

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

 

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