Ordered Liberty: In Light Of the Overruling Of Roe V. Wade
The damage is done, the clock is set back and for women in America, a new challenge awaits, the challenge of living with a right that their grandmothers and mothers enjoyed for the past 50 years writes Adv Pallavi Pratap, Managing Partner, Pratap And Company.
Majority vs. Minority: How SCOTUS ruled in Dobbs vs. Jackson
As I write today, the impact of the abolition of Abortion Rights in the United States of America is visible and egregious. In a historic decision, the Supreme Court delivered a majority opinion by 6:3 in Dobbs vs. Jackson[¹] overruling Roe vs. Wade[²](hereinafter referred to as ‘Roe’) as well as any other precedent established in consonance of the same, read Planned Parenthood of Southeastern Pa. v. Casey[³] (hereinafter referred as ‘Casey’) on 24th June 2021. It is a week since the opinion and already 9 states have banned abortion overall it appears that 26 states will ban abortion at various stages of pregnancy, which can be as early as 6 weeks [⁴]
‘QUICKENING’ AND ‘VIABILITY’
Before moving to the legal aspect of the opinion, it is imperative to understand the two terms ‘quickening’ and ‘viability’. Until the 20th century, there was no support by American law for the right to abortion. Abortion was a crime in every state. Each State was permitted to address this issue in accordance with the views of its citizens. By the time Roe came to be decided in 1973, 30 states had prohibited abortion at all stages. ‘Quickening’ can loosely be translated as movement in the womb of the fetus. Under the common law, post-quickening abortion was a crime, however, few authorities also held that pre-quickening abortion could be a crime to a certain extent. It has been held that in such an event, even if a woman died from a failed attempt at abortion, the abortionist will still be held guilty of murder. ‘Viability’ is also like quickening and in common parlance, the same would be the point at which a fetus can survive outside the womb. With the advancement of medical technology and the administration of steroids for holding a pregnancy to full term, the viability of the has now come to anywhere between 20 to 24 weeks.
ROE Vs. WADE – 1973 – ‘Potential Human Life and Trimester wise regulation’
‘Jane Roe’ was a fictional name given to protect the identity of the person who instituted a case against Henry Wade, the District Attorney of Dallas County, Texas. She had asserted an absolute right for termination of pregnancy at any time during pregnancy citing women’s right to privacy and no role of the state in regulating abortion. The Roe Court had clearly laid down trimester-wise regulation: The first trimester – abortion decision was left to the medical judgment of the pregnant woman and her physician. In the second trimester, the State could regulate to the extent where it was related to maternal health. Finally in the third trimester, after viability, the State’s interest in the ‘potentiality of human life’ became compelling and therefore State could regulate and even proscribe abortion except where it was for the preservation of life and health of the mother.
Roe Court had recognized the Right to Abortion as part of the Right to Privacy that comes from the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the American Constitution.
PLANNED PARENTHOOD Vs. CASEY – 1992 ‘Undue burden Theory’
After nearly 20 years of Roe having effectively followed, the Pennsylvania Abortion Control Act of 1982 was enacted which contained five provisions viz. requirement for the waiting period, spousal notice, and for minors to obtain parental consent prior to undergoing an abortion procedure, amongst other provisions. These provisions were challenged as creating undue obstacles for women in exercising their Right to Abortion. The Casey Court opined that there is the freedom to make ‘intimate and personal choices that are central to personal dignity and autonomy. The right to obtain an abortion is part of ‘liberty’ protected by the Fourteenth Amendment’s ‘due process clause’. Casey substituted the ‘trimester’ scheme as unworkable and substituted it with the ‘undue burden test’. The undue burden theory was primarily to avoid obstacles for a woman to get an abortion. Out of the provisions, a 24-hour waiting period, parental consent for minors, informed consent provision and few reporting measures of the medical facilities were permitted while the requirement to notify the husband was struck down as imposing an undue burden on the woman.
The emphasis was on the Fourteenth Amendment which reads as follows, ‘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;..’ Casey identified that the Right to Abortion was an integral part of the Fourteenth Amendment.
Mississippi Gestational Age Act
The current issue arose when Mississippi’s Gestational Age Act was brought and passed by State legislature but was immediately stayed by the Federal Court. Mississippi’s Gestational Age Act provides that “[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 hu - man being has been determined to be greater than fifteen (15) weeks.”
The Dobbs Court had Certiorari to decide on one question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The State of Mississippi had stated that it did not favour the ‘overturn of Roe v. Wade’ but only to reconsider the viability rule i.e. to 15 weeks instead of 20-24 weeks.
FIVE FACTORS IN OVERRULING ROE & CASEY:
The Majority opinion was delivered by Justice Alito, in which Justice Thomas, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett, joined, however, Justice Thomas and Justice Kavanaugh filed their concurring opinions. Chief Justice Roberts filed an opinion concurring with the judgment. The opinion ends with the clarification, ‘Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion’. The following five factors were identified in overruling Roe & Casey:
- The nature of the Court’s error - The Court’s opinion was that Roe’s findings were more in the nature of legislative drafting than that of constitutional law laid down as precedent. At the time of Roe, 30 states had prohibited abortion at all stages. As per the opinion, this abruptly concluded the political process by striking down abortion laws in every single state. However, in Casey, 2 Judges expressed no desire to change Roe, while 3 took a position that because of the Doctrine of Stare Decisis, prior decisions were to be followed and required adherence to the central holding in Roe. In Casey Court, 4 Judges overruled the decision in its entirety. Therefore, the entire majority opinion in both cases was more a policy goal than a judicial precedent
- The quality of reasoning – It was observed that the arguments pertained to fetal viability – pre and post-fetal viability. In most cases, viability is generally around 23 to 24 weeks. Roe had affirmed the constitutional right of a woman to terminate a pregnancy up to the point of viability i.e. pre-viability abortion.
The Majority opinion in Dobbs held that Liberty is an individual’s right to free thinking, but they are not always free to act in accordance with those thoughts. ‘Ordered liberty’ sets limits and defines the boundary between competing interests. The ‘Due Process clause’ provides substantive and procedural protections for ‘liberty’ which falls under either of these two categories of Substantive Rights – rights guaranteed by amendments to the constitution and those rights deemed fundamental that are not mentioned in the Constitution anywhere.
When it comes to the rights deemed fundamental, the test for deciding is whether a right is ‘deeply rooted in American History and tradition’ and whether it is essential to the country’s ‘scheme of ordered liberty. Since the American Constitution doesn’t offer any express right to obtain an abortion nor is it rooted in the nation’s history and tradition, therefore, it cannot be part of ordered liberty. The opinion did not agree with the argument and precedent that an asserted right which is nowhere mentioned in the constitution is guaranteed under Fourteenth Amendment.
3. Workability of the rules– The Majority opined that any precedent must be judged on the threshold of whether it is workable or not. ‘Undue burden test’ as laid in Casey, has blurred the distinctions on the three subsidiary rules viz, one, provision of law is invalid if it creates a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The second rule applies at all stages of pregnancy and states that women’s choices should be informed and there should be no undue burden on such a right. The third rule is that unnecessary health regulations that may present a substantial obstacle to a woman seeking abortion imposes an undue burden on the right.
Thus, the Majority held that there are conflicting Circuit Court rulings pertaining to the legality of parental notification rules, certain dilation and evacuation procedures, whether an increase in time taken to reach the clinic constitutes as an undue burden, and whether regulation can be done where abortion is carried out due to fetus’s race, sex or disability. This has been looked upon with disdain since this has created competing and conflicting rulings.
4. Disruptive Effect on other areas of law- Roe and Casey have led to a distortion of other important legal doctrines. The Dobbs Court’s opinion is said that both Roe and Casey ignored the Court’s third-party standing doctrine, disregarded the standard res judicata principles and flouted ordinary rules on the severability of unconstitutional provisions.
I would like to discuss dealing of the Majority opinion of the Doctrine of Stare decisis in this part. The doctrine of Stare Decisis is a common law principle of determining legal points based on precedents. It is a form of respecting the judgment of those who grappled with important questions in the past. Typically, it is noticed that any overruling of the precedent results in the broadening of the rights and not curtailing it. The Dobbs Court understood that the public will not take overruling Roe kindly. Thus, it opined that principles of stare decisis i.e. adherence to precedent is a norm and not a command.
5. Absence of concrete Reliance Interest – Reliance interest is a concept of property and contract rights and its applicability in the case at hand is that abortion is an unplanned activity and the requirement for a certain degree of reproductive planning is essential. An intimate relationship is entered upon the knowledge that abortion as an option is available should the contraception fail. Further, the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Court in Dobbs held that the effect of abortion rights on women is an empirical question and therefore, the Court has no authority or expertise to adjudicate such disputes. It is best that the decision is left to the legislative bodies. Women have political power and so they can lobby and get the legislature to understand that Right to abortion is critical.
Justice Thomas concurring – ‘Abortion is a policy goal which is desperately searching for constitutional justification’
While concurring with the majority opinion, Justice Thomas opined that the framers of the fourteenth amendment did not have the right to abortion in their mind while drafting it. The privilege and immunity clause granted by the Constitution vide the fourteenth amendment only provides protection in the enumerated rights and not so much for unenumerated rights. He further adds that there is a legal fiction of substantive due process clause which is dangerous. There are three such dangers enumerated by him.
First, ‘substantive due process’ puts the judges on a pedestal at the expense of the people from whom the former derives its power. This is so because the Court struggles to determine as to which substantive rights it protects by due process. He further adds that the judiciary then gives prominence to its own ‘extra-constitutional value preferences’ and nullifies state laws which do not align with ‘judicially created guarantees’. He says that there are 3 different interests that supposedly spring from due process clause viz, ‘bodily integrity, ‘personal autonomy in matters of family, medical care and faith’ and ‘women’s equal citizenship’. He goes on to say that abortion is a policy goal which is desperately searching for constitutional justification.
Second, substantive due process distorts other areas of constitutional law. He says that once a constitutional right is recognized for one class of individuals, there is equal protection clause which demands attentive scrutiny in cases where there are statutes which may deny others their rights.
Third, the substantive due process leads to disastrous ends. He cites how a substantive due process was followed to announce that Congress was powerless to emancipate slaves in federal territories and that the same was overruled by the Civil War and constitutional amendment. But such overruling had led to immeasurable human suffering. He further says that both Roe and Casey were ‘most notoriously incorrect’ and the harm caused is immeasurable since there have been 63 million abortions since 1973.
Justice Kavanaugh concurring, ‘Constitution is neutral on Right to Abortion’
He starts his opinion by stating that Pro-choice advocates argued that the right to abortion is critical to a woman’s personal and professional life and for women's health. Abortion Right has helped in securing greater equality in the last 50 years. Women must have the freedom to choose for themselves whether to have an abortion. Pro-life advocates argue that a fetus is a human life. They argue that all human lives should be protected as a matter of dignity and fundamental morality. The constitution is neither pro-life nor pro-choice. Since the Constitution is neutral on this issue therefore the nine unelected members of the Court cannot override the democratic process and to decree either pro-life or pro-choice abortion policy for 330 million people in the United States.
The Court agrees that Constitution does not freeze the American people’s rights as of 1791 (when the Constitution came in force) or 1868 (when Fourteenth Amendment was enacted). The unforeseen cannot be restricted to 1791 or 1868. Constitution authorizes the creation of new rights.
On the issue of stare decisis, he says that respect is to be given to Court’s precedents and for the accumulated wisdom of judges who previously addressed the same issue. Stare decisis finds its root in Article III of the American Constitution and is fundamental to American law and the judicial system. Constitutional precedent can be over-ruled in the following situations:
- The prior decision is not only wrong but is egregiously wrong;
- The prior decision has caused significant negative jurisprudential or real-world consequences and;
- overruling prior decisions would not unduly upset legitimate reliance interests.
He says that over-ruling Roe doesn’t overrule judgments on contraception and marriage or other precedents or cast threat or doubt.
Chief Justice Roberts concurred, ‘The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system’
He restricts his opinion to Certiorari being granted to decide, ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional?’ The Mississippi Gestational Age Act generally prohibits abortion after fifteen-week of pregnancy – several weeks before a fetus is regarded as ‘viable’ outside the womb. He opined that Mississippi law allows women three months to obtain an abortion, well beyond the point when it is considered ‘late’ to discover pregnancy. Emphasis was laid on the distinction between abortion and infanticide and that abortion has been banned after 20 weeks in a few jurisdictions has been premised on the theory that the fetus can feel pain at that stage of development. Mississippi’s law is based on banning ‘dilation and evacuation’ procedures being barbaric and dangerous for the mother and demeaning for the medical profession.
Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. A 15-week ban provides sufficient time to decide whether an abortion is required or not unless there is a medical emergency. But state laws outlawing abortion altogether would still violate the binding precedent.
Justice Breyer, Justice Sotomayor, and Justice Kagan, filed a dissenting opinion, ‘With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.’
Women’s Right to control their life
The dissenting opinion reiterated that Roe held, and Casey reaffirmed that Constitution safeguards the rights of women to decide for themselves whether to bear a child. The Government cannot control a woman’s body or the course of her life. The Court had made a balance earlier that until the viability line was crossed, a State could not impose a ‘substantial obstacle’ on a woman’s right to abortion. However, now the Court has discarded that balance and ruled that from the very moment of fertilization, a woman has no right to abort. This is without any exception to rape or incest.
Curtailment of Women’s Rights and Status as free and equal citizen
The dissenting opinion brought to the fore the issue with respect to the enforcement of these draconian provisions. The State would not only impose criminal penalties on abortion providers but also put the criminal liability on the woman’s conduct as well. The biggest challenge foreseeable is that there can be interstate restrictions like blocking women to go to other states to obtain an abortion or even obtaining abortion medications. This will result in the curtailment of women’s rights and their status as free and equal citizens. It will be a nightmare for women especially those who are marginalized, those without childcare or the ability to take time off from work. There is a possibility that they may try the unsafe methods of abortion and come to harm themselves. And even if they undergo pregnancy and have a child, that may be at a significant personal, professional, and financial cost.
Overruling Roe and Casey will impact other laws based on similar precedents
It is significant to recognize that the right Roe and Casey recognized, did not stand alone and that it has been linked with other settled freedoms like those involving bodily integrity, familial relationships, and procreation. It is evident that the Right to terminate a pregnancy is linked with the Right to purchase and use contraceptives and recently with the rights of same-sex intimacy and marriage. The majority said that abortion could not be recognized as a right until Roe but it forgets that the other rights that followed were also not in the Constitution or were not deeply rooted in history or traditions. Therefore, this logic makes the other rights, that the majority claims to have not been affected by this judgment, perverse too. One of the two can only be true. The logic of majority opinion then suggests that all rights which have no history, therefore, become unconstitutional.
The other rights which have heavily relied upon the Fourteenth Amendment and are not enumerated rights like Right to engage in private, consensual sexual acts (Lawrence V. Texas[⁵]) Right to same-sex intimacy and marriage (Obergefell v. Hodges[⁶]). It did not protect the right recognized to marry across racial lines (Loving v. Virginia[⁷]). It did not protect the right recognized to contraceptive use (Griswold v. Connecticut[⁸]). For that matter, it did not protect the right recognized not to be sterilized without consent (Skinner v. Oklahoma ex rel. Williamson[⁹]).
On Stare Decisis and Common Law
The majority ignored the doctrine which encapsulates within itself, modesty and humility. Casey is a precedent, about a precedent, viz., Roe. The Roe Court by 7:2 vote recognized that even though there will be ‘opposing views’, the choice must belong to the woman. The assertion that protection of prenatal life is important was easily balanced by Roe and subsequently by Casey when they held that the State could regulate post-viability abortion. Tracing back the lack of abortion rights to the 13th century by the Majority Court itself shows that it was a wheel-spinning exercise.
Stare decisis allows people to plan their lives under the law. As Blackstone said, ‘it keeps the scale of justice even and steady and not liable to waver with every new judge’s opinion.’ Stare decisis is not an inexorable command but there has to be ‘special justification’ to show that the precedent was wrongly decided.
Also looking at common law authorities from where the majority seeks to derive legality of abortion rights, itself said that abortion cannot be treated as a crime till the time of quickening. The other interesting point of dissent is with respect to the ratifiers of the fourteenth amendment. It is stated by the majority that ‘people’ ratified the fourteenth amendment; however, it is quite clear that ‘people’ then included ‘only men’. This indicated that they were not attuned to the importance of reproductive rights for women’s liberty. As a matter of fact, when the fourteenth amendment was ratified in 1868, women did not have suffrage and the same was attained only half a century later.
It is important to note that there is a realm of personal liberty, especially related to bodily integrity and family life, which the government may not enter. Interracial marriages were illegal in most states in the 19th century. It was the Court’s opinion that the State should not interfere with a person’s most basic decisions pertaining to family and parenthood. Every adult has the right to decide what shall be done with his body. An American woman cannot be forced to complete a pregnancy and give birth, to undergo physical changes, and medical treatments and be exposed to the likelihood of 14 times the danger of death carrying a pregnancy to term than by having an abortion. For some women, abortion is medically necessary to prevent harm. The majority says that Roe and Casey, as far as the rights involving marriage, procreation, contraception, and family relationships are not disturbed by overruling them. Justice Thomas, however, puts the caveat that Dobbs does not reject the other precedents and that these precedents will be reconsidered and overruled as these are ‘demonstrably erroneous decisions’.
Also, even though the Majority says that the opinion will not interfere with other precedents, but no one knows how the interpretation of the opinion and the intention of the same, will be interpreted in the future. As Justice Scalia had said that there can be no ascertainment as to how same-sex intimacy will not lead to the right for same-sex marriage in the future. To replicate the views held in 1868 in 2022 is doing a disservice to the advancement and development made in society, especially by stripping off women of agency over their bodily rights.
The precedent worked well for 50 years, and the majority was unable to show major cases where there was a conflict of law in deciding on the lines of Roe and Casey. To hold Roe and Casey as egregiously wrong, the rule of law is substituted by the rule of the judge.
Problems with a full-term pregnancy
The majority has opined that the state can regulate- regulate a hypertensive woman who is chance of fatality is 30 to 50% increased as a result of ongoing pregnancy. Does it apply to morning-after pills or IUDs or IVF? There are regulations for women who may not be allowed interstate travel or will have to get out-of-state health care providers, mailing in for abortion medication and this will result in ‘inter-jurisdictional abortion wars’. The problems with respect to pregnancy are manifold, especially with healthcare coverage, pregnancy discrimination and family leave. There are no earned leaves available and only about 20% of private-sector workers have access to paid family leave. The majority puts the woman to the rigours of adoption and the vast majority will have to shoulder the cost of childbearing.
Globally New Zealand and a few other countries allow abortion in a similar time frame. Canada has decriminalized abortion at any point in pregnancy. More than 50 countries have expanded access to abortion including India as recently as 2021.
The majority’s decision is a ‘loaded weapon’, weakening of doctrine of stare decisis thereby creating profound legal instability. As has been observed by the Chief Justice and in the dissent, Mississippi and also other States knew exactly what they were doing. The 15-week ban at issue here was enacted in 2018. The Certiorari was limited to the 15 weeks ban. Only when the composition of the Court changed, did Mississippi decide to go far enough and argue to overrule Roe and Casey. The damage is done, the clock is set back and for women in America, a new challenge awaits, the challenge of living with a right that their grandmothers and mothers enjoyed for the past 50 years.
 Dobbs, State Health Officer Of The Mississippi Department Of Health, et al. v. Jackson Women’s Health Organisation Et Al 597 U.S. ____ (2022)
 Jane Roe V. Henry Wade 410 U.S. 113 (1973)
 Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992)
 Abortion Rights
 Lawrence V. Texas 539 U. S. 558 (2003)
 Obergefell v. Hodges, 576 U. S. 644 (2015)
 Loving v. Virginia, 388 U. S. 1 (1967
Griswold v. Connecticut 381 U. S. 479 (1965)
 Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942),
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