Case Study: Dobbs v. Jackson Women’s Health Organization

Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

STATEMENT OF FACTS

In 2018, Mississippi’s Jackson Women’s Health Organization filed a lawsuit against the Gestational Age Act. The Supreme Court sought to review the standard the Court’s previous cases have used to determine the bounds of the Fourteenth Amendment and its applicability of “liberty” to civil rights, namely the right to privacy. The clinic requested a temporary restraining order against the Mississippi law. Dobbs v. Jackson Women's Health Organization, Oyez (Oct. 7, 2024, 11:07am), https://www.oyez.org/cases/2021/19-1392. The district court ruled in favor of the clinic, preventing Mississippi from enforcing their law; and on appeal the judgment was reaffirmed in the Fifth Circuit Appeals Court. See Id. Here, the Supreme Court sought to first, “[review] the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right;” namely, the right to privacy. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

First, the Court viewed the context of Roe v. Wade, whereby the Court held that “the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Roe v. Wade, 410 U.S. 113 (1973). In Roe v. Wade (1973), “the Court relied on the right of privacy in striking down a Texas statute criminalizing most abortions,” Otis H. Stephens, Jr., American Constitutional Law: Sources of Power and Restraint 252 (John M. Scheb II, et al. eds, 4^th ed. 2008).

Second, the Court utilized Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) to consider their ruling. The Court cited Roe v. Wade in their decision of Planned Parenthood v. Casey, (1992); writing that “Roe determined that a woman's decision to terminate her pregnancy is a ‘liberty’ protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). Yet “the Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.” Id.

Moreover, the Court sought to investigate whether the right to privacy is implied in the provisions of the U.S. Constitution. The Court stated that, “[t]he Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right.” See Id. Secondly, the Court sought to examine whether “the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’” Id.

ISSUE

Can the Constitution’s Fourteenth Amendment’s reference to “liberty” confer both the right to privacy—and in that; a right to obtain an abortion supported by other precedents, namely Due Process; when the act of abortion itself is unmentioned in the Constitution, nor deeply rooted American history, nor in its tradition?

RULE OF LAW

Under the U.S Constitution’s Fourteenth and Fifth Amendments’ Due Process Clause, the Court addressed the meaning of the provision found in Section One of the Fourteenth Amendment, thereby stating “[n]o 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.” U.S. Const. amend. XIV, § 1.

Due Process is a concept used within the Fifth and Fourteenth Amendments to the Constitution, whereby declaring that no person shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Here, the Court interpreted the use of the word “liberty” in both provisions of the Due Process Clauses (found in the Fourteenth and Fifth Amendments) to support an inherent right to privacy, and if that privacy extends to the act of abortion. Specifically if “the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right; namely privacy. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

Additionally, the First, Fourth, Ninth Amendments were advocated as featuring an implied right to privacy. The First Amendment’s provision “to petition the government for a redress of grievances;” the Fourth Amendment’s “right of the people to be secure in their persons;” and the Ninth Amendment’s “reservation of rights to the people.” See Id.

HOLDING

The Opinion of the Court was delivered by Justice Alito, with concurrence from Justice Thomas, Justice Kavanaugh, and Justice Roberts. The Court’s opinion held that, “[g]uided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). Justice Alito affirmed that “[w]e hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). The Court held in its opinion that “[t]he doctrine of stare decisis does not counsel continued acceptance of Roe v. Casey.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). The Opinion of the Court further held that “[t]he Court has no authority to decree that an erroneous precedent is permanently ex­empt from evaluation under traditional stare decisis princi­ples.” Id.

Dissenting was Justice Kagan, Justice Breyer, Justice Sotomayor. In a joint opinion, the three Justices address the candidacy of their dissent, acknowledging that “[t]he dissent’s failure to engage with this long tradition is devastating to its position.” See Id. The joint opinion furthered that “[b]ecause the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the ‘constitutional tradition’ is ‘not captured whole at a single moment,’ and that its ‘meaning gains content from the long sweep of our history and from successive judicial precedents.’ Id.

RATIONALE

Here, Justice Alito reasoned that “some rights that are not mentioned in the Constitution, but

any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty. Washington v. Glucksberg, 521 U. S. 702, 721 (1997).” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). Justice Alito further reasoned that “[t]he Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” See Id. Speaking for the Court, Alito recorded that in Roe v. Wade, the Court held that “the abortion right . . . is part of a right to privacy,” yet abortion “is not mentioned in the Constitution,” nor is a right to privacy. Id.

Similarly, the Court reasoned that, “[u]ntil the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.” Further, “[n]o state constitutional provision had recognized such a right.” Justice Alito reiterated that, “[u]ntil the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

Justice Kavanaugh concurring with the Court, wrote that “[i]n sum, the Constitution is neutral on the issue of abortion and allows the people and their elected representatives to address the issue through the democratic process. In my respectful view, the Court in Roe therefore erred by taking sides on the issue of abortion.” See Id. Kavanaugh added that “the Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution.” Id.

Justice Roberts concurring in his opinion, reaffirmed “[w]e granted certiorari to decide one question: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’” Id.

The Court reasoned that the doctrine of stare decisis “plays an important role and protects the interests of those who have taken action in reliance on a past decision,” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). It does this by “reduc[ing] incentives for challenging settled prece­dents, [and] saving parties and courts the expense of endless relitigation. Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). The Supreme Court cited five factors that strong supported its overruling of both Wade and Casey. Id. These five factors included: (1) the nature of the Court’s error; (2) the quality of reasoning; (3) workability; (4) effect on other areas of law; and (5) reliance interests. In Dobbs v. Jackson, the Court additionally cited Roe v. Wade, (1973) whereby its ruling held that “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” Moreover, [a]nd that privacy right . . . had [originated in]. . . five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

The Court reasoned that abortion is not a substantive right nor is it found in the Constitution. Justice Alito stated that “[o]ur decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments . . . [while t]he second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.” Id.

JUDGMENT

In sum, the Supreme Court ruled that “[t]he inescapable conclusion is that a right to abortion is

not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022). Thus, the Court’s judgment in Dobbs v. Jackson invalidated the previously federally enacted national mandate, and returned the decision of abortion back to the states.