Dobbs: What Happened and What It Means

I wrote this article out of frustration with conflicting reports in the media about what happened in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022). The United States Supreme Court overruled Roe v. Wade. That much is certain. The rationale and implications, however, are not at all clear from the various media reports of the decision that I have read.

I prepared this writeup neither to celebrate nor to criticize the decision, but simply to help myself understand it. I believe that I am not the only person who has read conflicting accounts, so I decided to publish it.

The issue

The case involved a challenge to the constitutionality of the Mississippi Gestational Age Act, Miss. Code § 41–41–191 (2018) (“the Act”).

The statute prohibits the performance of an elective abortion in Mississippi more than 15 weeks into pregnancy. After the 15th week, abortions may legally be performed only in cases of medical emergency or fetal abnormality. Based on an average gestational period of nine months, the 15th week of pregnancy is in the second trimester of pregnancy.

Roe v. Wade, 410 U.S. 113 (1973) had held that governments cannot prohibit elective abortions during the second trimester except to protect the life and health of the mother. By prohibiting elective abortions during the second trimester, the Act squarely transgressed the Roe v. Wade edict.

An abortion clinic, the Jackson Women’s Health Organization, and one of its doctors, filed a lawsuit to declare the Act unconstitutional and to enjoin its enforcement.

The clinic succeeded in the lower courts. On June 24, 2022, the United States Supreme Court reversed the lower courts, taking the opportunity to review its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833 (1992).

Constitutional Source of the Abortion Right

The United States Constitution does not explicitly provide a right to abortion. Roe v. Wade, however, held that the right to choose to have an abortion prior to the viability of the fetus is a right of privacy that is implied by other provisions of the Constitution. The Court identified three possible constitutional sources of this implied right: (1) the Ninth Amendment; (2) the penumbra of the First, Fourth and Fifth Amendments (applicable to states by virtue of the Due Process Clause of the Fourteenth Amendment); and/or (3) the Fourteenth Amendment’s protection against state deprivations of liberty without due process of law. The idea that the word “liberty” in the Fourteenth Amendment includes freedoms that are not explicitly enumerated elsewhere in the Constitution is known as “substantive due process.”

In a subsequent case, Planned Parenthood of Southeastern Pa. v. Casey, the Court reaffirmed Roe v. Wade, this time grounding the source of the right in Fourteenth Amendment substantive due process, without reference to the other two possible sources identified in Roe v. Wade.

What About Equal Protection?

Neither Roe nor Casey were decided on Equal Protection grounds. In Dobbs, however, the United States government filed an amicus brief suggesting the Equal Protection Clause of the Fourteenth Amendment as another possible source of a right to an elective abortion.

The Court rejected the argument.

On its face, the statute is gender-neutral. It prohibits all doctors — male or female — from performing abortions at 15 weeks or later. A male doctor would be subjected to the same penalty for performing an abortion as a female doctor would be. (Note: The statute also applies to non-doctors who perform abortions.)

A statute that appears gender-neutral on its face may nevertheless violate Equal Protection if it is found to be a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello, 417 U.S. 484, 496, n. 20 (1974). The Court has held, though, that without more, the objective of preventing abortion does not constitute invidious discrimination against women. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 273–74 (1993). In effect, what the Court has said is that being against abortion doesn’t mean you hate women. Since the Act in this case punishes both male and female doctors, and apparently nobody showed that legislators acted with malice toward women when they enacted it, a different kind of argument was needed in this case, as it was in Roe v. Wade, in order to have the Act declared unconstitutional.

Rights in the Penumbra

Griswold v. Connecticut, 381 U.S. 479 (1965) struck down a criminal prohibition against the use of contraceptives. Although the Bill of Rights does not enumerate a right to use contraceptives, Justice Douglas described the Bill of Rights as having “penumbras” formed by those guarantees that create “zones of privacy.” He found the right of marital privacy — i.e., how married couples perform sexual activities in the privacy of their own bedrooms, and the decision whether to perform them for sexual pleasure or for procreation — to be one of the zones of privacy within a penumbra of the Bill of Rights. Roe v. Wade built on that and other ideas to reach the conclusion that choosing to have an abortion is also an unenumerated right within a constitutionally protected zone of privacy.

Justice Douglas devised the penumbra theory of unenumerated rights at a time when the Court disfavored the “substantive due process” concept. Substantive due process had fallen into disfavor after its inception in Lochner v. New York, 198 U.S. 45 (1905) because it had been used to defeat many kinds of economic and social welfare legislation. Justice Douglas disfavored it because he felt that it required the Court to act as a sort of “superlegislature” evaluating the need for and wisdom of legislation. Grounding unenumerated rights instead in a right of privacy implied by the rights enumerated in the Bill of Rights obviated the need to rely on substantive due process doctrine.

The Court has never overruled Griswold. It has, however, subsumed its doctrinal basis within the concept of substantive due process. Cf. Casey, supra. In fact, in subsequent decisions, the Court has even incorrectly characterized Griswold as a substantive due process decision. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 663 (2015).

The Ninth Amendment

The Ninth Amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The district court in Roe v. Wade had relied on this Amendment as the source of protection of abortion rights. The Supreme Court held that it did not make any difference whether the right was described as one “retained by the people” under the Ninth Amendment or as part of the “liberty” that the Due Process Clause of the Fourteenth Amendment protects. Roe v. Wade, supra at 153. The Ninth Amendment, too, has effectively been subsumed within the concept of substantive due process.

Substantive Due Process

Court decisions recognize two kind of “due process” protections: substantive and procedural. The difference can be illustrated with an example:

Suppose a legislature enacts two statutes: One prohibits the act of breathing in public. The other provides that anyone accused of sexual assault shall be conclusively presumed to be guilty upon accusation by a member of a specified demographic group and will have no right to present evidence or confront the witnesses against him.

The first statute in this example denies a substantive right, the right to breathe in public. It violates substantive due process if it does not have the requisite level of justification for its enactment. The statute prohibiting sexual assault, on the other hand, is highly unlikely to violate substantive due process. No court is likely to hold that people have a fundamental right to sexually assault each other. A judge might, however, determine that the procedure for deciding guilt or innocence is unfair, so a court might hold that it violates procedural due process.

The Court has established a tier system of rights for purposes of substantive due process analysis. Some rights are “fundamental” and others are not. When a statute infringes a fundamental right, the Court subjects it to strict scrutiny. This is a standard of review that requires the government to demonstrate the law is necessary and narrowly tailored to accomplish a compelling state interest. Economic and other kinds of non-fundamental rights receive a lower standard of review known as the “rational basis test.” In these situations, a government only needs to have a rational basis for enacting the law.

What rights are “fundamental”?

There are two ways a right can earn the “fundamental” honorific.

First, it can be a right that is protected in the Bill of Rights. The freedom of speech protected by the First Amendment, for example, is a fundamental right. This is why these Amendments, which on their face only restrict the powers of the federal government, now generally are deemed to restrict the powers of States as well. They are said to have been “incorporated into” and made applicable to States as part of the “liberty” that the Fourteenth Amendment protects against State encroachment.

The second way a right can earn the “fundamental” title is by being “deeply rooted in [the country’s] history and tradition” or essential to “ordered liberty.” Timbs v. Indiana, 586 U.S. ____ (2019) (slip op., at 3) (internal quotation marks omitted).

The “deeply rooted in history and tradition” requirement has led the Court to reject a substantive due process challenge to a state law prohibiting physician-assisted suicide. Washington v. Glucksberg, 521 US 702 (1997). A fundamental right, the Court declared, must be “objectively, deeply rooted in this Nation’s history and tradition.” Id. at 720–21. Since no right to die could be found in that history, the Court determined that it was not a fundamental right.

The history and tradition of abortion rights

The Dobbs majority surveyed pre-Roe-v-Wade history and found no history or tradition in support of a right to elective abortion. To the contrary, abortion had a long history of being criminalized. Early common law treated abortion as criminal after “quickening,” which was assumed to be the moment when life begins. During the eighteenth and nineteenth centuries, abortion at any stage of pregnancy came to be criminalized in most U.S. jurisdictions.

The Dobbs majority could find no common law or historical authority for a right to abortion prior to Roe v. Wade.

Rational basis

Since the majority in Dobbs determined that elective abortion is not a fundamental right, it applied the “rational basis” standard of review to the Act. Under this test, a court is not supposed to substitute its own judgment for that of a legislature on the questions whether a particular legislative goal is worthwhile and whether a legislature selected the best or smartest way to achieve it.

Governments are very rarely unable to satisfy that standard. All that is needed is some articulable and arguably rational, nondiscriminatory reason for enacting the law. In this case, Mississippi stated that the law was enacted out of respect for and in the interest of preserving prenatal life; to protect maternal health; for the elimination of a “barbaric” medical procedures; to preserve the integrity of the medical profession; to mitigate fetal pain; and to prevent discrimination on the basis of fetal disability, race or sex. The Dobbs majority determined that these justifications sufficed to satisfy the rational basis test.

The Roberts Concurrence

Justice Roberts agreed that the Act does not violate the constitution, but he declined to reach the question whether the constitution protects a right to abortion.

In Roberts’ opinion, the viability line established by Roe and Casey was arbitrary and should be discarded. In its place, he would substitute a “reasonable opportunity” test. According to Roberts, a woman should be able to make up her mind whether to have an abortion within the first three months of pregnancy.

The Dobbs majority found no basis in history and tradition for a 3-month right to abortion.

Query: If Roberts’ approach of leaving the Roe v. Wade holding that abortion is a fundamental right intact had been adopted, what compelling justification could a State assert for curtailing that right after three months? And would the three-month period apply only to the decision to have an abortion or to both the choice and the performance of the medical procedure? And finally, if Roberts is committed to discarding viability considerations, then what “compelling” justification would there be for limiting the right to three months?

The Dissent

Three justices dissented. They rejected the “history and tradition” approach to determining which rights are fundamental. They pointed out that relying on history has had unjust consequences. For example, shortly after the Fourteenth Amendment was enacted, the Court applied historical analysis to reach the conclusion that the Equal Protection Clause did not bar a state from denying a woman a law license solely on the basis of sex. Bradwell v. State, 16 Wall. 130 (1873).

Historically, race discrimination was the target of the Thirteenth, Fourteenth and Fifteenth Amendments. How, the dissent asks, have there come to be cases interpreting the Equal Protection Clause as prohibiting other kinds of discrimination, too? “The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution,” the dissent says; the Framers “did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.”

Note that not very long ago, this Court rejected the historical analysis approach when it upheld the right of gay marriage in Obergefell, supra. Historically, the right of marriage was limited to opposite-sex couples.

According to the Dobbs dissent, “The Constitution does not freeze for all time the original view of what [constitutional] rights guarantee, or how they apply.”

Implications

Not a referendum on abortion

Preliminarily, it should be noted that Dobbs is not a referendum on the morality of abortion, or on the question of whether or how to regulate it. The Court did not decide whether abortion is good or bad, moral or immoral. It opened the door for States to make those judgments.

Other implied rights

The Dobbs majority states that its holding does not undermine other implied rights of personal autonomy the Court has recognized, such as the rights to obtain and use contraceptives, Griswold, supra; to marry a person of a different race, Loving v. Virginia, 388 U.S. 1 (1967); to the care and custody of one’s children, Pierce v. Society of Sisters, 268 U.S. 510 (1925), et al.; to not be involuntarily sterilized, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to engage in private consensual sex acts, Lawrence v. Texas, 539 U.S. 558 (2003); and to marry a person of the same sex, Obergefell v. Hodges, 576 U.S. 644 (2015). The difference, the Court says, is that those rights do not involve the destruction of a “potential life.”

Is that a satisfactory answer, though? Cases like Loving, Lawrence and Obergefell are not necessarily at risk of being overruled after Dobbs, given that they involved Equal Protection issues that were not involved in Dobbs. They may be distinguishable on that basis. But what about Griswold (the contraception case) and other “personal autonomy” cases?

If history and tradition are now the critical, exclusive determinants of whether a right is properly regarded as fundamental or not, then it does seem like the right to use contraceptives that was recognized in Griswold may be in jeopardy. As the Dobbs dissent points out:

The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history…. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” . . . So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

What about other “personal autonomy” rights? The Court in Griswold described the right with which it was dealing as the “right of marital privacy.” That right, the Court said, was “older than the Bill of Rights.” Governments, however, have meddled in marital relations in many ways throughout history. There are records of blanket prohibitions against oral and anal sex from medieval times through the eighteenth century. Laws against “unnatural” sex acts, even between married couples, existed in colonial America and persisted in many jurisdictions through the nineteenth and twentieth centuries. As Justice Kennedy observed in Lawrence v. Texas, supra, “[e]arly American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreational sexual activity more generally, whether between men and women or men and men.” Id. at 568.

In his concurrence in Dobbs, Justice Thomas indicated that he is ready to throw out the whole idea of substantive due process. He not only agreed with the majority’s decision to overrule Roe v. Wade, but suggested that the Court “should reconsider all of this Court’s substantive due process precedents….”

A future Court might accept the Dobbs majority’s invitation to apply the decision narrowly as if it is limited to cases involving abortion. Or it might choose to apply the “history and tradition” reasoning that was employed in Dobbs to reevaluate Griswold and other “penumbral rights” decisions, as Justice Thomas suggested.

Really, only time will tell.

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