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Dobbs v Jackson - What happened to Roe v Wade?!

Updated: Sep 25

Dobbs v. Jackson's Women's Health Organization is a landmark decision by the US Supreme Court on June 24, 2022, stating that all bans on pre-viability abortions are constitutional. Viability is defined as the gestational stage, in which the fetus could survive outside the womb with medical support and intervention. Although the draft of the opinion (with the same ruling that Roe was "egregiously wrong") was leaked two months earlier to the press, the release of the final decision continued to invite further debates.

With a vote of 6-3, Justice Samuel Alito led the majority opinion whilst Justice Breyer, Kagan, and Sotomayor jointly wrote a dissenting opinion. The division of the Court on the issue was exemplified as the dissent denounced the majority's opinion as well as Court's complete disregard for women's autonomy and lives. In the opinions, Chief Justice Roberts and Justice Thomas both wrote separately from the majority. It was clear that they stood slightly on the opposite spectrum: Roberts asserted his reasoning would not be based on the viability line but on the undue burden test; on the other hand, Thomas argued that not only should Roe v Wade be overruled but also reconsider the Court's previous rulings on substantive due process precedents (through Fifth and Fourteenth amendments of the US constitution). This implications on other implicit rights, which are previously justified by the Court with exactly substantive due process, was one of the main fears that people had:

  1. the right to contraception: Griswold v Connecticut

  2. the right to same-sex marriage: Obergefell v. Hodges

  3. the right to same-sex sexual activity: Lawrence v. Texas

  4. and many more

In the majority opinion, Justice Alito traced back the history of abortion access in the United States and argued that it was not deeply rooted in "our Nation's history"; however, it had been criticized that it was "an inartful collection of cherry-picked facts recited in an ahistorical fashion". Court's previous abidance to stare decisis principle - courts should not overturn their precedents (i.e., Roe v Wade) - is countered by Justice Alito that the Roe v Wade was grievously incorrect.

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.

Federal and State

The result of the case would inevitably result in the bifurcation of the states as the battle has now (officially) been directed to the states-level as the states fall into each of the camps.

The conflict was catalyzed by fifteen states' "trigger" laws that meant that total/near-total abortion would go into effect almost immedia

tely. Although at the outset it showed that the country would be increasingly divided, it also suggested a graver problem: the calling for states' rights. This is coupled with the framework of "laboratories of democracy": creative policy ideas are first tested within the states and then possibly adopted on the federal level.

After Roe v Wade and Casey, the issue of abortion did not come to an end. Opposition against the decision was experienced because there were still disagreements on abortion rights and the Supreme Court had jumped over the public opinion. Pro-life state legislatures repeatedly challenged Court's decision by passing laws that were directly in tension, if not against the decision of Roe v Wade. These challenges highlighted the call by anti-abortion activism that issues related to abortion should be returned to states.

International Law

On the question of whether Dobbs v Jackson had violated any international law, two main principles are discussed.

Firstly, the principle of human dignity (supported by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and many other laws) is defined as the capacity to make "self-defining and self-governing choices". Human dignity was invoked by the Supreme Court in justifying Roe v Wade as well as Thornburgh v American College of Obstetricians and Gynecologists; hence, the reversal of Roe signified that women's autonomy was undermined.

Secondly, the concept that all humans possess equal dignity was supported by the Universal Declaration of Human Rights (UDHR). Putting the argument of whether a fetus could count as a human aside, it still remained true that a pregnant woman would experience disparity in treatments; with states that criminalize abortion, physicians would likely delay their treatment until a great decline in the patient's health appeared lest they face criminal liability. The dilemma was expressed by King, who is the vice-chair of ACOG's Committee on Ethics:

"watch somebody get sicker and sicker and sicker until some point – and where is that point? – where it's OK to intervene and we won't be exposed to criminal liability,"

One shortcoming of international law is the extent of its effectiveness in interfering with the sovereignty of the members of the states. Not only is UDHR not legally binding on states, but the core international instruments that are legally binding also will not be of significant effect in the US unless it is self-executing or the Congress passed legislation to make the convention binding. Taking the example of the International Convention of Civil and Human Rights, it is non-self-executing and it had not been incorporated into federal or state law. Hence, judiciary efforts would not be sufficient in the case.

Common-Law System: US

Looking back at the strand of thought that the majority opinion of Dobbs v Jackson that is trying to guide us into, it seemed to have ignored the core feature of the common-law legal system, which the US is fundamentally based on: flexibility. The majority opinion had forsaken the power that judges are given to interpret the law and instead sought to use (somewhat partial) historical evidence to constrain themselves in a self-made rigid model. Subsequently, instead of viewing the Constitution in light of the change in public opinion and the current public sentiment, the majority of the Court wished to turn the clock back 100 years.

Further reading

Great overview of landmark cases on abortion in the US

The prediction of state-by-state fight

Tracking the States Where Abortion is Now Banned

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