On June 24, 2022, the United States Supreme Court (i.e., SCOTUS), in a 6-3 decision in Dobbs v. Jackson Women’s Health Organization, voted to overturn the federal protections on abortion found in both Roe v. Wade (1973) and Casey v. Planned Parenthood (1992).
Dobbs originated in Mississippi in 2018 when the Jackson Women’s Health Organization, a clinic and abortion facility, challenged the constitutionality of the “Gestational Age Act” in Federal Court. The state law, enacted in March 2018, prohibited abortions after the fifteenth (15) week of pregnancy except in cases of medical emergencies or fetal abnormalities. The applicable District Court found in favor of the Jackson Women’s Health Organization as unconstitutionally restrictive as fifteen (15) weeks is still considered to be pre-viability and within the 1st trimester. Additionally, the 5th Circuit Court of Appeals affirmed the District Court ruling. Eventually, the Supreme Court granted writ of certiorari for SCOTUS’ October 2021 term and heard oral arguments in this case in November 2021.
Dobbs marked the first time SCOTUS has considered the constitutionality of a pre-viability abortion ban since Roe v. Wade.
For background, Roe v. Wade held that women in the United States had a fundamental right to choose whether to have abortions without excessive government restrictions. SCOTUS divided pregnancy into three (3) trimesters based upon viability and declared that the choice to end a pregnancy in the 1st trimester was up to a woman; the 2nd trimester the government could regulate abortion, although not ban it, in order to protect a women’s health; and in the 3rd trimester the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.
Casey v. Planned Parenthood affirmed SCOTUS’ ruling in Roe v. Wade based upon the legal doctrine of stare decisis (i.e., It’s already been decided) to uphold a women’s right to abortion, but also changed the trimester framework; now states were allowed to regulate abortions before fetal viability as long as substantial obstacle or undue burden was not added (i.e., getting a husband’s permission). The states, therefore, individually could place differing regulations on the right to abortion, but they could not be unduly burdensome.
SCOTUS has, up until 2022, held that this fundamental right to an abortion was implicit in the right to privacy protected by the 14th Amendment. The right itself stemmed from the right of an individual to privacy and the foundation of individual liberty. This concept is known as substantive due process, or a mechanism found in constitutional law that allows the courts to establish and protect certain fundamental rights, though they are not enumerated, from governmental interference. States have substantive due process through the 14th Amendment, the federal government has it through the 5th Amendment.
Though there is no right to privacy mentioned in the Constitution, SCOTUS found that the Bill of Rights created a “penumbra” of privacy (i.e., rights derived from implication) embedded in the right of liberty. This penumbra, especially after Roe v. Wade grew exponentially to include other important decisions including the right to procreate, the right to maintain familial relationships, the right to make decisions about how to raise children, the right to intimacy, the right to personal control of medical treatment, and the right to marry whom one chooses.
The right to interracial marriage (Loving v. Virginia) and the access to contraception (Griswold v. Connecticut) pre-dated Roe, but these individual privacy rights were given more teeth after 1972 and are also considered a part of the penumbra.
Justice Samuel Alito wrote the majority opinion in the just released Dobbs v. Jackson Women’s Health Organization and made a point to state that the holding in Dobbs only applied to the right of a woman to have access to and get an abortion. However, it was Justice Clarence Thomas’ concurring opinion that gave many pause. It stated the following:
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence [marital relations], and Obergefell [gay marriage]. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
The implication of Justice Thomas’ concurring opinion with the doctrine of stare decisis causes a majority of Americans concern. Stare decisis, found in Article III Section 1 of the Constitution, states in pertinent part that with matters decided by SCOTUS, it is important that the applicable decision becomes rule of law and that a given matter be “settled and that it be settled right.” If settled case law is able to be so easily overturned, then, theoretically, no rights are safe from the Dobbs treatment. As Roe was settled law for almost fifty years (50), most believed that, as stare decisis has taught us, that the right to abortion was settled law, SCOTUS could not take away what was already decided upon.
Yet, Casey gave the individual states the right to regulate abortion, and that is exactly where the power now lies: with the states. As federal protections for abortions have been rescinded, it is up to the individual states as to whether or not they will continue to provide these services. As almost a month has passed since Dobbs, many states are debating in their own legislative chambers; however, many states had trigger laws on the books automatically banning abortions as soon as the Dobbs decision was released.
Though Dobbs was a huge blow to abortion protection, moving forward, it will be interesting to see how this decision affects all the other penumbra privacy rights and body autonomy as a whole: will SCOTUS overturn interracial marriage? gay marriage? is the right to privacy afforded married couples restricted? what about independent medical decisions? can women still have access to birth control? will Americans be forced to get certain vaccines? will they be forced to wear masks?
Only time will tell how far and wide the Dobbs effect will be.
Caroline B. Zook is an Associate Attorney at Weber Kracht and Chellew. She is a thoughtful, thorough, and persuasive advocate for her clients who puts her keen analytical skills to work primarily in the areas of plaintiff and defense litigation while also expanding her practice in family law. Caroline values the importance of keeping her clients informed as she pursues the most favorable outcomes on their behalf. Caroline is a member of the Bucks County Bar Association and is a volunteer for their ABA Mock Trial competition.
This article is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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