Failure of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) to stop the abortion debate:
Justice Alito (one of the nine justices on the US Supreme Court) who wrote the majority opinion in the Dobbs v. Jackson ruling, which overturned the landmark Roe case in June 2022, first pointed out the failure of the Roe and Casey rulings to truly set the national debate on abortion to rest. He wrote that, “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly.” It is true Americans do hold, “passionate and widely divergent views on abortion,” as Justice Alito wrote, but the reality is much more complex. The Pew Research Center recently reported that 61% of Americans believe abortion should be legal in all or most circumstances while 37% believe it should be illegal in all or most circumstances. In fact, support for abortion is actually higher than it was a decade ago but, crucially, the partisan divide over it is growing wider. The issue of abortion rights was only really politicised in the 1970s, especially during the 1972 Republican presidential campaign of Richard Nixon. He adopted an anti-abortion position to appeal to social conservatives, especially Catholic voters. After Nixon both won the election and a majority of Catholic votes, Republican strategists began using the same tactics in Congress, as well as forging coalitions with evangelical groups around opposition to abortion, in order to further capitalise upon the voting power of this group.
The perceived lack of constitutional grounding for the right to abortion:
The US Supreme Court majority in Dobbs held that the Constitution made no reference to abortion and thus no such right was implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey mainly relied: the Due Process Clause of the Fourteenth Amendment. That provision had been held to guarantee some rights that weren’t mentioned in the Constitution, but only up to a point. In the Supreme Court’s ruling on Washington v. Glucksberg, which held that the Fourteenth’s Due Process Clause does not confer a right to assisted suicide, the Supreme Court surveyed more than 700 years of “Anglo-American common law tradition,” and made clear that a constitutional right must be, “objectively, deeply rooted in this Nation’s history and tradition,” and, “implicit in the concept of ordered liberty.” To the minds of the conservative justices in the super-majority (when a group has more than the five votes needed for a majority) this did not apply to their perceived view of the right to an abortion, and their bias was unfortunately clearly displayed throughout Justice Alito’s written opinion.
To Justice Alito, Glucksberg cautioned that, “[w]e must ... exercise the utmost care whenever we are asked to break new ground in this [constitutional] field, lest the liberty protected by the Due Process Clause be subtly transformed [implied: into a constitutional home for the abortion right].” Therefore, the crux of Justice Alito's legal rationale was that the 14th Amendment's protections of freedoms that are not explicitly mentioned in the Constitution must be limited to those rights that were understood to exist deep in the country's history, especially around 1868 when that amendment was ratified. This mentality is an example of legal "originalism" a theory which asserts that all statements in the constitution must be interpreted unquestioningly based on the original understanding, "at the time it was adopted.” This is in sharp contrast to the more liberal interpretative method that views the Constitution more as a living document whose meaning can evolve with society. This was an approach famously advocated by the liberal Justice Ruth Bader Ginsburg in her time as a Supreme Court Justice.
Thus Justice Alito and the Supreme Court majority argued not only that there was no support for such a constitutional right for abortion until shortly before Roe, but abortion had long been a crime in every state. In common law, abortion was subject to legal sanction in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages of pregnancy. Tracing back to the time when the Fourteenth Amendment was adopted, a wave of statutory restrictions in the 1800s expanded criminal liability for abortions; three-quarters of the states had made abortion a crime at any stage of pregnancy. The remaining states soon followed. To an originalist like Justice Alito, this fact would therefore have completely justified the denial of any potential support for the right to an abortion in the Constitution.
The proto-felony-murder rule:
In the case of abortion, Justice Alito cited Blackstone (an 18th century legal writer) who wrote of the proto-felony-murder rule, as explained below. This rule was deemed by Justice Alito to be relevant to the question of abortion rights:
“(If one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.”
Notably to Justice Alito, Blackstone did not state that this proto-felony-murder rule required that the woman be “with quick child” - only that she be “with child.” It was also revealing, in Justice Alito’s mind, Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient, “without any intent of doing [the patient] any bodily hurt.” These other physicians - even if “unlicensed” - would not be, “guilty of murder or manslaughter.” However, a physician performing an abortion would be guilty because his aim was an “unlawful” one in the eyes of Blackstone.
This historical precedent of the proto-felony-murder rule, which showed the felonious nature of abortion in the 18th century was seen by Justice Alito to be relevant in the 21st century. This is another example of his originalist views with regards to the constitution. It is also indicative of his desperation to find the justification he sought for his Dobbs ruling, resorting to the annals of history to find his answers when modern reality was unforthcoming.
The special nature of abortion and “potential life”:
In the ultra-conservative view of Justice Alito, what sharply distinguished the abortion right from the rights recognised in the cases which Roe and Casey relied on for precedent was something that both those decisions partly acknowledged: abortion destroys what Alito termed, “potential life.” Thus, to Justice Alito, “it [was] impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for the reason that none of those cases involved the destruction of so-called “potential life.” From the conservative justices’ point of view, therefore, the precedent which provided the legal foundation for the constitutional right to an abortion was illegitimate. Thus, the ruling on Roe v. Wade was itself, also illegitimate. However, the use of the concept of “potential life” as legal justification is subjective, and all comes back to the national debate, mirrored in the US Supreme Court, over when a foetus’ right to live should be recognised. Science says that the logical answer (upheld by most moderate Republicans, and most Democrats) is at the point of “viability”, when a foetus is developed enough to survive outside the womb (usually after about 25 weeks of pregnancy). However, the Supreme Court instead decided to ignore set precedent and scientific know-how to favour their own religious and conservative compasses instead.
On the overturning of precedent / “stare decisis” as a result of the ruling:
Legal precedent, or stare decisis, has been described as, “a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” Adherence to this principle reduces the incentive for courts to endlessly challenge the ruling of settled cases, thus fostering, “even-handed decision making by requiring that like cases be decided in a like manner.” Thus, the crucial role of precedent, “contributes to the actual and perceived integrity of the judicial process,” by effectively restraining judicial hubris. However, despite the many benefits of adherence to the above, in the Dobbs ruling the US Supreme Court overturned a half-century of precedent. Justice Alito (and thus the conservative majority, too) sought to justify their decision on 24th June by arguing that the US Supreme Court had long recognized that stare decisis was “not an inexorable command,” and it “is at its weakest when interpret[ing] the Constitution.” In addition, they asserted, “when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but [the] Constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.” However, this is in effect an admission of the unrepresentative nature of the Dobbs ruling. In order to amend the Constitution in such a way as to completely deny any chance of the right to an abortion, the amendment has to be proposed by two-thirds of both Houses of Congress, or by a convention formed if two-thirds of the States in the US requested an amendment. Alito, alongside the other conservative justices, knew that support for abortion rights nationwide was higher than in the US Supreme Court, so they simply took the path of least legal resistance to achieve their anti- abortion agenda.
Furthermore, Justice Alito highlighted that, “Some of the US Supreme Court’s most important constitutional decisions have overruled prior precedents.” He especially pointed to perhaps the most venerated landmark civil rights decision in American history, Brown v. Board of Education (1954) in which the Court repudiated the “separate but equal” doctrine. However, this logic is fallacious on two counts. Alito completely ignored the fact that Brown gave an important civil right, while Dobbs took one away. He also failed to acknowledge how the reasoning behind the Brown decision was substantially based off the concept of a “Living Constitution” which evolved with a changing society, which was in stark contrast to the originalist views of J. Alito.