Inside the ’Dobbs’ decision

Health law and policy expert Joanne Rosen discusses the Supreme Court decision that overturned ’Roe’ and ’Casey’ and ushered in a new era of reproductive rights in the United States

The long-awaited U.S. Supreme Court ruling on the case Dobbs v. Jackson Women’s Health Organization landed Friday afternoon, undoing 50 years of abortion rights in the United States.

"The opinion was stunning in its outcome and in the enormity of the implications entailed by the removal of a constitutionally protected right," says Joanne Rosen , a health law and policy expert and senior lecturer at the Bloomberg School of Public Health.

Specializing in the impact of law and policy on sexual and reproductive health, Rosen has been closely monitoring the Dobbs case for months. She spoke with the Hub last month after a draft of the Dobbs decision was leaked to Politico .

"The draft opinion neglects any meaningful recognition of the women who face unwanted pregnancies, and focuses almost entirely on the state’s interest in the fetus," Rosen said at the time. "Dobbs, as it’s written now, is devoid of nuance. It appears to look only at one life that’s in the balance, ignoring the fact that there are two."

The Hub reached out again to Rosen for her legal analysis of the final Dobbs decision, as well as the concurring and dissenting opinions that were filed alongside it. She says the ramifications of the case will be felt for years to come.

"What is extraordinary in this case is that, perhaps for the first time, the Supreme Court departed from precedent not to recognize a right it previously neglected but rather to remove one it previously protected. It deconstitutionalized a long-standing right. This is an astonishing moment and an astonishing use of the court’s authority."

Read more from our conversation below.

What stood out to you about the majority opinion authored by Justice Samuel Alito?

Justice Alito begins the majority opinion by acknowledging the complexity of perspectives on abortion in a way that echoes the opening section of Roe v. Wade. He says, "Abortion presents a profound moral issue on which Americans hold sharply conflicting views." But that is where the similarities end. Justice Alito then moves to the crux of the court’s opinion: The Constitution says nothing about abortion; contrary to the holdings in Roe v. Wade and Planned Parenthood v. Casey, decisions about abortion are not constitutionally protected, and Roe and Casey must be overruled.

While the court has granted constitutional protection to some rights that are not explicitly mentioned in the text-so-called unenumerated rights-Justice Alito says that abortion differs from these other unenumerated rights because a right to abortion is not deeply rooted in this nation’s history and traditions. To support this conclusion, he reviews the history of abortion laws at the time the 14th Amendment was enacted. In so doing, the court discredits the extensive historical analysis undertaken in the original Roe opinion, asserts that Roe "either ignored or misstated this history," and finds that abortion has long been criminalized in this country. In justifying the reversal of Roe, the majority describes the Roe opinion as "egregiously wrong from the start," an abuse of judicial authority, and based on an analysis that was "far outside the bounds of any reasonable [constitutional] interpretation."

I think this is a "pinched" reading of the protections in the Constitution (to quote the dissenting opinion), and of the role of history in understanding constitutional rights. The majority’s opinion is also inconsistent with some of the court’s other cases granting constitutional protection to unenumerated rights. For example, the Constitution is silent on the right to marriage, yet the court has consistently recognized that the right to marry is protected under the 14th Amendment. Consequently, the court invalidated anti-miscegenation laws that prohibited interracial marriage, and did so despite the fact that interracial marriage was not deeply rooted in the nation’s history and traditions. More recently, the court extended the constitutional right to marry to couples of the same gender and invalidated same-sex marriage bans.

"The dissent asserts that the majority’s opinion will result in ’the curtailment of women’s rights and of their status as free and equal citizens,’ and that it is poor women in particular who will be most affected by this decision because they may lack the resources to travel to other states where abortion will continue to be protected."

But not all the justices agreed on this ruling.

That’s right. Justices Breyer, Kagan, and Sotomayor wrote a joint dissenting opinion that offers a forceful critique of the majority opinion. The dissent is detailed, comprehensive, and does not mince words. It is also very much a woman-centered opinion. While the majority opinion largely writes women out of the constitutional analysis, the dissenting opinion puts women at the center. This is apparent from the first line: "For half a century, Roe and Casey have protected the liberty and equality of women." The dissent is anchored in the profound impact that control over bodily autonomy and decisions relating to pregnancy have on women’s lives. It asserts that the majority’s opinion will result in "the curtailment of women’s rights and of their status as free and equal citizens," and that it is poor women in particular who will be most affected by this decision because they may lack the resources to travel to other states where abortion will continue to be protected.

What is the purpose of a dissenting opinion? What power does it have?

The majority opinion constitutes the precedent. It sets out what the law is, and the rules that lower courts and legislators must follow. In a dissenting opinion, the justices are putting on the record the way they would have decided the case and why they believe the majority’s opinion is wrong. The dissent is written not only for the present but for the future. Dissenting opinions may incrementally move the Overton window, and there may be strands of a dissenting opinion that weave their way into majority opinions over time. The "undue burden" standard at the heart of Casey, for example, first appeared in earlier dissenting opinions. And there may even come a time when the court revisits the wisdom of its opinion, and the dissenting opinion offers an alternative approach.

The Dobbs dissent may also provide guidance to states and state courts. States will now be deciding how they wish to regulate abortion, and the analysis in the dissenting opinion may be used to guide, justify, or inform state policies that seek to protect access to abortion.

But there were six justices who did agree with this decision, three of whom filed concurring decisions.

Yes, that’s correct. In case some readers don’t know, a concurring opinion agrees with the outcome in the majority opinion but may have reached that outcome in a different way or for different reasons. In Dobbs, each of the concurring opinions has something specific to say. The media have described Dobbs as a 6-3 decision, but I don’t think this is accurate. In light of Chief Justice Roberts’ concurring opinion, I think Dobbs is a 5 plus 1 decision.

In his concurring opinion, the chief justice emphasized the importance of judicial restraint and of the court not doing more than it needs to do in order to decide a case. He would have discarded the viability standard in Roe and Casey and allowed Mississippi’s 15-week abortion ban to go into effect. But, critically, he would not have reversed Roe and Casey as precedent. So, the chief justice agreed with the majority’s decision to uphold the Mississippi law but disagreed with their reversal of Roe and Casey. Had at least one other justice joined the chief justice on this point, women would retain some, albeit more limited, constitutional protection over abortion decisions.

What about Justice Thomas’ concurring opinion? It has garnered a significant amount of media attention.

Justice Thomas does not believe that the due process clause in the 14th Amendment, which is the constitutional basis for the right to abortion, provides protection for substantive rights. He has expressed this view in previous cases. Consequently, he agrees with reversing Roe and Casey because they are predicated on a right he says does not exist. He goes further than the majority though, and argues that the court must reconsider all of its substantive due process precedents. This includes cases related to the use of birth control (Griswold v. Connecticut), same-sex intimate sexual partners (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges). He contends that all of these decisions, like Roe and Casey, are "demonstrably erroneous."

Justice Thomas regards the reversal of Roe and Casey as the first step, not the last, in correcting what he believes to be constitutional error. He is, in colloquial terms, "saying the quiet part out loud."

That’s certainly frightening and disheartening for people who rely on rights outlined in those cases.

Absolutely. The majority does address this point explicitly and says that abortion is a "unique act" that can be distinguished from these other rights. So, the reversal of Roe and Casey does not set the stage for the reversal of other unenumerated rights that are similarly rooted in the due process clause. It seems difficult to imagine, however, that the analysis in Dobbs will not be used as a fulcrum to challenge other important rights that share a constitutional lineage with Roe and Casey, and the court’s comments are not binding on or dispositive of future challenges to these other precedents. Justice Thomas is inviting these challenges, and the dissenting justices highlight the vulnerability of protections for other deeply personal rights that are woven of the same "constitutional fabric" as Roe.

Where do we go from here?

At the moment, I can think of a near-endless array of legal uncertainties and questions raised by the Dobbs opinion, in addition to those we have already discussed. For example, what kind of exceptions will be provided by states that restrict or ban abortion, and will states be required to provide certain kinds of exceptions? Presumably, abortion restrictions will include exceptions for cases in which continuation of the pregnancy is life-threatening. These "life of the mother" exceptions have historically been part of abortion bans. Will states also include exceptions for pregnancies that imperil the health of the pregnant person? If not, will they be required by the courts to include a health exception? Will health exceptions include both physical and mental health? Will abortion restrictions include exceptions for pregnancies that are the result of rape or incest? The Mississippi law at issue in the Dobbs case does not include a rape or incest exception. Some states have only provided rape and incest exceptions where the crime has been reported to the police. Because rape and incest are extraordinarily underreported, a reporting requirement may be tantamount to not providing a meaningful exception. Will states provide explicit exceptions to ensure that treatment is available for miscarriages and ectopic pregnancies? I expect there will be legal challenges surrounding exceptions to abortion restrictions. Post-Dobbs litigation involving abortion restrictions is already underway in several states.

Another legal issue involves the enforcement of abortion restrictions. Abortion laws have generally been enforced against the people who perform or attempt to perform abortions, or who assist or aid people seeking abortions. States have generally not enforced their restrictions against people who seek or obtain abortions, but this could change. Finally, will states prosecute or attempt to prevent travel by their residents to other states to obtain abortions? One of the concurring opinions suggests that this kind of extraterritorial enforcement would violate the constitutional right to interstate travel, but it may be tested.

This is by no means a comprehensive list of what to expect next, but it does give you a sense of the complexity and magnitude of potential legal issues after Dobbs.

Health , Voices+Opinion , Politics+Society

supreme court , reproductive health , abortion

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