Judicial Review Prevails Over Judicial Activism in Dobbs

By LYNDA WRAY BLACK

As Justice Alito’s majority opinion correctly begins, “[a]bortion presents a profound moral issue on which Americans hold sharply conflicting views.” Acknowledging that truism (and further acknowledging that the initial sentence may be the only sentence of the majority opinion with which some of you concur), let me begin by stating that I have not been asked to share my moral views on abortion. It is the legal correctness of Dobbs v. Jackson Women’s Health Organization (hereinafter Dobbs) for which I advocate. Unlike many readers of this article, I have read the Dobbs opinion — all 213 pages inclusive of footnotes, appendices, two concurring opinions, one concurrence in the judgment, and one dissent. And, like many of you, I have heard months’ worth of commentary, one might say vitriol, on the majority opinion presenting the holding and reasoning of five members of our highest court, with one additional Justice concurring in the judgment.

Through this article I hope to clarify what Dobbs does (and does not) say. I will provide the Constitutional framework which supports the correctness of the majority. Finally, I will address several tangential issues which, though not governed directly by the holding of the case, are supremely important issues facing our country.

What does Dobbs hold? Justice Alito penned the opinion of the Court which holds the United States Constitution does not confer a right to abortion. Consequently, Dobbs overturns Roe v. Wade which had first created the Constitutional right to abortion in 1973 by the “exercise of raw judicial power” (quoting from Justice Byron White’s dissent in Roe). Interestingly, critics of Dobbs sling accusations of judicial activism against the conservative Justices composing the majority. It appears that one’s tolerance for judicial activism is directly proportionate to one’s agreement with the result obtained by the activism.

One might conclude, as many in the media have, that the overturning of Roe is synonymous with the eradication of the right to an abortion. That is where logic fails. The American people possess many rights. Some rights are Constitutional rights; many others are conferred by and regulated by the States. Abortion and other reproductive rights (which I will touch on at the end of this article) have been returned to the people and to their elected state representatives. The right to an abortion has not ended categorically. It has been properly returned to the states for determination. The misunderstanding of this simple fact has created a false narrative as seen in the words of President Biden, who when speaking to the media the day the Dobbs opinion was released, stated the Supreme Court “simply took it away” referring to a woman’s right to seek an abortion. That is simply a false political narrative.

You might question why I stated above that the regulation of abortion has been properly returned to the states. Unpacking this issue requires precise Constitutional analysis unmarred by an end run to the desired result on the particular facts presented. To follow the analysis, we must first understand the genesis of the Constitutional right of abortion. In 1973, a pregnant single woman challenged the constitutionality of the Texas statutes (first enacted in 1854) which criminalized abortion except for the purpose of saving the mother’s life. In the opinion delivered by Justice Blackmun, the majority opinion sought “to resolve the issue by constitutional measurement, free of emotion and predilection . . . plac[ing] some emphasis upon medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries.” The Supreme Court invalidated the Texas statutes as violative of the plaintiff’s right to terminate her pregnancy, which right according to the Roe Court rests upon the Constitutional right of privacy. While noting that the Constitution does not actually mention a right of privacy, the Court by extension added abortion to other privacy rights such as marriage and contraception. These privacy rights all rest upon the Fourteenth Amendment’s concept of personal liberty. Importantly, Roe did not find the right to an abortion to be an absolute right. Rather, the majority opinion acknowledged the competing interest of the State of Texas in protecting potential life. The Court goes on to rely upon the then prevailing medical knowledge to draw a line which it calls the “compelling point” at the end of the first trimester of pregnancy after which a state may regulate the abortion procedure. Thus, far from creating an unqualified right to abortion, Roe tempered the right as the fetus matured. Roe created a Constitutional right for a woman and her physician to choose an abortion without state interference during the first trimester of pregnancy.

Contrary to the prevailing view espoused in nonrigorous pop culture, Roe has not existed as unquestioned authority on the issue of abortion, even among more liberal thinkers. The first challenge to the reasoning of the majority opinion appeared in Justice Rehnquist’s dissent in Roe, as follows: “To reach its result, the Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Later critics of the opinion include Justice Ruth Bader Ginsberg who criticized the reasoning of the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state anti-abortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.

While we speak in shorthand about the overturning of Roe v. Wade, this landmark decision was not technically the governing law at the time of Dobbs. In 1992, in a controlling opinion signed by only three Justices, Casey v. Planned Parenthood had overruled Roe in part by jettisoning the trimester scheme in favor of an undue burden approach, treating the right to abortion as an implicit Constitutional right which is essential to ordered liberty. This fact explains why the majority opinion in Dobbs devotes much ink to the history of abortion. Under Casey, the science-based viability standard replaced the less scientifically accurate (perhaps even arbitrary) trimester scheme in balancing the woman’s qualified right to an abortion based upon her individual and constitutionally protected liberty interest against the state’s interest in protecting the unborn. Let me be perfectly clear: the text of the Constitution does not confer a right to an abortion. Neither Roe nor Casey held that it did. The Constitution does not mention abortion. In order to assert the constitutionality of the right, one must show an implied hook into the actual rights protected by the text. It is this implied hook (found previously in either privacy or liberty) which six members of the Supreme Court rejected in Dobbs.

Abortion is not a Constitutional right. This is a correct statement of the law post-Dobbs. Does this fact end the discourse with respect to abortion? Absolutely not. The discourse has been returned to the people and to the states. As Justice Ruth Bader Ginsberg noted in 1992 in an article published by N.Y.U Law Review, “Roe . . . halted a political process that was moving in a reform direction and thereby, I believed, prolonged decisiveness and deferred stable settlement of the issue.”

So exactly what rights does a woman have? There is no singular answer to that question as the answer rests upon state law. Risking the fact that my statistics will likely be outdated by the time this article appears, I wish to share the current state of state law on abortion. As you might predict, the states have created a patchwork of abortion laws with some states becoming abortion havens and others effectively banning the procedure. To date, six states have enacted permissive abortion laws, several of which extend abortion rights well beyond what was permissible under Roe and Casey. Eleven states effectively have blanket prohibitions against abortion, with small carve outs of permissibility, for example, when the abortion is a medical necessity to save the life of the mother. Tennessee falls within this group of eleven restrictive states. Even within the restrictive jurisdictions, the liability for an impermissible abortion falls not on the pregnant woman herself, but rather on the doctor or on those who aid and abet the procurement of the procedure. Additionally, the permissive states allow out-of-state residents to travel to their states for abortions. So, technically, all women regardless of state residency are legally permitted to get an abortion by availing themselves of the right granted by a permissive state. The issue is accessibility. A right is meaningless if it is impossible to claim. While it is true that all American women may seek an abortion, it is equally true that many American women cannot. The required travel to a permissive state effectively deprives many residents of restrictive states (who cannot afford such travel) from procuring an abortion. The ruling in Dobbs has highlighted a need which pre-dates, and extends well beyond the abortion debate, namely, that large segments of the population live in health care deserts or otherwise face barriers to receiving health care. One particularly vulnerable subset of the population is expectant mothers. Whether you identify as pro-life or as pro-choice, there is common ground for all of us to promote better access to health care.

While the federal question of abortion rights has been definitively answered by the Supreme Court, the question of what procreative rights any particular woman possesses remains uncertain. States continue to amend their laws while liberal prosecutors pledge not to prosecute violations of state abortion bans. Uncertainty breeds fear among those who might seek an abortion and caution among those who might provide it. Even practitioners within related reproductive services such as fertility planning, surrogacy arrangements, and cryopreserved embryo storage and implantation are pondering over the impact of Dobbs on their practices. So, rather than answering one question, Dobbs has generated many. While attorneys in the burgeoning field of assisted reproductive technology (ART) are huddling to examine the possible reach of Dobbs-type restrictions on other reproductive rights (such as those addressed within surrogacy contracts), I predict the Dobbs decision will not limit or otherwise create barriers for those professionals practicing fertility law. The Dobbs majority is clear that its holding is limited to the constitutional right to an abortion. No other right, reproductive or otherwise, is called into question. As the majority opinion clearly states twice, “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Whether you agree with me and support the constitutional correctness of the Dobbs opinion or not, I think there are two issues – broad legal issues – surrounding the Supreme Court which should raise alarm for all attorneys, if not all Americans. The leak of Justice Alito’s draft opinion represents an unprecedented disrespect for the authority of the Supreme Court by those close to the inner workings of the Court. The dismissive media coverage of the leak compounded the disrespect for the Court and sought to minimize and normalize what was an historic breach of trust. Secondly, the admission of a 26-year-old man that he had traveled from California to Justice Kavanaugh’s home to kill the Justice because he was angry about the High Court’s expected overturning of Roe, reflects a fundamental disrespect not only for the Justices, but for the rule of law. We can agree to disagree over the correctness of the Dobbs decision (which really is constitutionally sound), but we as attorneys must all demand respect for the rule of law. 

Lynda Wray Black is an Associate Professor at The University of Memphis, Cecil C, Humphreys School of Law. She earned her J.D. from Yale University after earning a Bachelor of Arts in Philosophy from The University of Memphis. While in private practice in Memphis and New York, she primarily handled estate planning, probate, and trust matters. Her practice also has encompassed representation of not-for-profit organizations, contracts, sureties law, and domestic relations.