Five things to bear in mind after Dobbs

Are abortion rights guaranteed in the Constitution?

In 1973, the Supreme Court handed down a judicially creative interpretation of the 14th Amendment in the case Roe v. Wade, claiming abortion was like other privacy-based rights (such as the rights to contraception, same-sex marriage, adult sexual acts with a consenting partner, and interracial marriage). That is, unenumerated rights, rights inherent in the Constitution but not listed by name, like the right to free speech and the right to bear arms.

So that’s it. The current decision is illegitimate. Abortion is constitutional!

The Supreme Court in its decisions creates precedents, meaning judgments they’re supposed to follow in the future. That’s the doctrine of stare decisis. But the Court is also allowed to revisit itself and overturn what it may feel is a bad decision.

Some of these are famous, for example, Plessy v. Ferguson, which said separate but equal was the law of the land, leading to black kids going to one school and white kids to another supposedly equal school. Plessy held stare decisis for nearly 60 years, until the decision in Brown v. Board of Education overturned it. Like Roe, society was structured around Plessy and decisions were made in keeping with it, until it was no longer the law.

Today, almost everyone sees Plessy as bigoted, but that does not change the principle of stare decisis, just how we feel about it. Bottom line: respect for precedent does not preclude the Supreme Court from overturning its past rulings, even if that means big changes like societal desegregation.

I’m still stuck on how the 14th Amendment can say something to one group of justices but not to another group of justices.

Because the Constitution was written mostly in the 18th century, a lot was not anticipated by the Founders. So the Supreme Court exists to interpret the meaning. The 14A was ratified in 1868 and extended civil and legal rights to everyone, specifically formerly enslaved blacks. It granted citizenship to all persons born or naturalized in the United States, ensured rights to those in states where discriminatory laws were in place, and said the right to due process of law and equal protection under the law applied at both the federal and state levels of government. The 14A says “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Court found in 1965 that this text contained the right to privacy, specifically the right of married couples to get contraceptive advice from their doctors. The Court said that even though the Constitution does not explicitly lay out a right to privacy, “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system,” so it’s there without needing to be written out. This is where the 2022 Dobbs decision draws its insta-iconic line that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”

Then, in 1973, amid a national debate over abortion, the Court found that a woman’s right to an abortion was implicit in the right to privacy. At the same time, it acknowledged the state’s interest in protecting the “potential of human life,” and so Roe‘s trimester-based system for abortion restriction was created. As with same-sex marriage, since the right was in the Constitution, America needed a federal-level decision on how that would be broadly carried out, with a compromise to leave room for states’ interpretation.

In 1992, the trimester system was reviewed in Planned Parenthood v. Casey. The justices reaffirmed a woman’s right to abortion but gave states more leeway in regulating it as long as the states did not create an “undue burden.” For example, some states legally implemented a 72-hour waiting period and mandatory counseling.

In 2022, in Dobbs v. Jackson, the Court changed its mind. It said abortion was not a constitutional right, and thus the Constitution does not prevent state legislatures from banning abortion and creating their own laws.

So can’t the Court now go back and do away with our rights to contraception, same-sex marriage, and interracial marriage, deciding variously that those are not unenumerated rights?

Technically, yes; in reality, hardly likely. While Justice Thomas wrote separately that other “substantive precedents” decided by the Court should be re-examined, no other justice agreed. More importantly, Justice Alito, who wrote the 2022 opinion, specifically cited those rights and said the instant decision had nothing to do with them. Among other reasons, abortion stands alone in that the government has an interest in protecting the “potential of human life.” And even Thomas did not place interracial marriage (Loving v. Virginia) on the chopping block, though it has many of the same judicial roots as the other unenumerated rights.

Justice Alito wrote plainly, “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” That would make citing Dobbs as precedent to overturn, say, same-sex marriage nearly impossible.

So bottom line is the Supreme Court says women cannot have abortions.

No. The Court did not make abortion illegal. The Court said abortion, once regulated by Roe’s trimester system, would instead be regulated by each state individually. This is to acknowledge the lack of consensus in America on what is morally right. Seven states, for example, have no plans to change their laws and allow even for third-trimester abortions, among the most liberal globally. These include populous states like California and New York with huge metro areas. So a majority of women will live in states where surgical abortion is accessible (the majority of abortions even pre-Dobbs took place in blue states.)

Other states, such as Mississippi, which pre-Dobbs had only one abortion clinic, have made the procedure illegal though to little overall change. Some 13 states will make abortion illegal, and the change to women in those areas who cannot travel may be more significant. The point is for each state to consider what is right for itself.

Potential harm to women will be mitigated by “abortion pills,” which did not exist in 1973 and will help eliminate so-called coat-hanger abortions today (there is no case in America of a woman being prosecuted for seeking an abortion since 1922). Even before the recent decision, over 42 percent of abortions were “medical abortions,” by pill. While there is no way to downplay the significance of Dobbs, it does not create the black or white landscape for reproductive rights that its critics try and paint.