The Dobbs decision is monumental. As America’s federal system has been eroded by seemingly endless decisions, regulations and mandates emanating from the federal government, it is encouraging to see a decision in which the Court has respected constitutional limitations and actually restrained its own powers.
On June 24th, 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court of the United States officially repealed Roe v. Wade, a decision that since 1973 had imposed a constitutional right to an abortion on the entire nation. With it, Planned Parenthood v. Casey (1992) and other decisions upholding Roe’s right to an abortion were also overruled. While the Dobbsdecision had been anticipated for almost two months, on account of an unprecedented and illegal leak of an early draft of the decision, the Court’s ruling last week made official what many conservatives had hoped would happen for many decades. A 5-4 decision, Chief Justice John Roberts sided with the majority’s judgment on the narrow issue of the constitutionality of Mississippi’s abortion regulation, but did not himself countenance a broader repeal of Roe.
In Samuel Alito’s majority opinion, the Justice wrote that the majority of the Court was guided by “the history and tradition that map the essential components of the Nation’s concept of ordered liberty” and asserted that it found that the “Fourteenth Amendment clearly does not protect the right to an abortion.” Alito noted that, prior to Roe, abortion had been criminalized by every single state in the Union and that the original intention of the Fourteenth Amendment was not to dictate abortion policy to the nation. “The Constitution makes no reference to abortion,” Justice Alito wrote, “and no such right is implicitly protected by any constitutional provision.” With abortion policy no longer dictated by the Supreme Court, the issue has been sent back to the state governments where it resided for most of American history.
The Court’s three Progressive Justices—Elena Kagan, Sonia Sotomayor, and the now retired Stephen Breyer—predictably claimed that the Dobbs majority failed to respect “a woman as an autonomous being,” accused the Court of sowing partisan division across the country, and assailed the majority for ignoring fifty years of precedent. The dissenting Progressive Justices were apparently unconcerned with the question of whether autonomy from laws both divine and natural is truly a legitimate goal of a free society. They also did not acknowledge that the Court’s sweeping 1973 decision nationalized the abortion debate and, by shifting it away from the slightly more amiable climate of state politics, radically inflamed partisan tensions across the country. The dissent’s appeal to the unquestionable authority of precedent also comes as a surprise given that the same justices never miss an opportunity to celebrate the Warren Court’s Brown v. Board of Education decision, which undeniably overruled precedent when it ended segregation and annulled the Plessy v. Ferguson decision from the late 19th century. Precedent alone clearly cannot resolve the inescapably moral debates surrounding our laws.