Legally Speaking: It will come down to the states, not Supreme Court, to rule on abortion legality

Legally speaking, the Supreme Court did not ban abortion.

In the draft opinion for Dobbs v. Jackson, which was released yesterday, Justice Samuel Alito writes “the Constitution does not confer a right to abortion. Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

The draft opinion of the decision is just that, a draft. It has not been published — yet.

The typical procedure, in a nutshell, is the justices decide to accept a case, they read the briefs submitted by the parties, they listen to oral argument, they discuss with each other (if they want), one justice drafts the majority opinion, it is circulated for comment/additions/corrections by the other justices, it is finalized and then published.

By the time the draft opinion is circulated, it is almost certain which justices will be in the majority, which one(s) will write their own opinion and which one(s) will dissent (disagree).

At this point, it is unlikely we will see a significant change in the majority decision.

The Court begins and ends the draft opinion by pointing out, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.”

The draft opinion concludes with the Court reverting the power to the states to decide whether to legalize abortion, and, if so, what the rules will be.

Each state will now have the right to pass its own laws regarding.

“Our decision returns the issue of abortion to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office.”

This case centers around Mississippi’s Gestational Age Act (Miss. Code. Ann. Section 41-41-191). The central provision of that act states “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”

The day the act was enacted, the Jackson Women’s Health Organization — an abortion clinic — and one of its doctors filed suit in federal district court arguing the act violated the constitutional right to abortion. The case worked its way up to SCOTUS.

The draft opinion starts by breaking down the Roe and then the Casey decision and explains why it accepted this case. It then answers the question of “whether the Constitution … confers a right to obtain an abortion.”

In his draft opinion, Justice Alito addresses that question in three steps.

The first step is to determine whether the 14th Amendment protects the right to an abortion. Second, the draft opinion examines whether the right to an abortion is rooted in our Nation’s history and tradition. Finally, whether a right to obtain an abortion is supported by other precedents (stare decisis).

The Court found the 14th Amendment does not protect the right to an abortion because it is not mentioned in our constitution.

However, even if it is not mentioned, it could still be protected if the right is deeply rooted in our history and tradition (the second step)– which the Court found it is not.

Justice Alito takes the reader through the history of abortion laws and opinions from the 13th century to today.

“By the time of the adoption of the 14th Amendment, three-quarters of the States had made abortion a crime at any state of pregnancy and the remaining States would soon follow.”

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.”

Next, the draft opinion turns to the concept of stare decisis which “calls for prior decisions to be followed in most instances.”

Stare decisis protects the interests of those who have relied on a past decision, reduces incentives to challenge precedents and “restrains judicial hubris and reminds us to respect the judgment of those who grappled with important questions in the past.”

Alito explains that “in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.” (Roe and Casey are both prior decisions of the Supreme Court.)

Justice Alito explains there are five reasons Roe and Casey should be overruled.

First, Roe’s constitutional analysis “was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed, and the Court short-circuited the democratic process.”

Second, Alito writes that the quality of the reasoning in Roe was poor. “Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent.”

Third, it is explained the rule imposed, aka the “undue burden test” in Casey, was unworkable because it is ambiguous and has caused confusion and disagreement in later cases.

Fourth, these cases have “led to the distortion of many important but unrelated legal doctrines.”

Lastly, there is no “concrete reliance” on Roe and Casey. The “effect of the abortion right on society and in particular on the lives of women” is not concrete, according to the draft opinion.

#Legallyspeaking, if this draft opinion is published, Roe and Casey will be overturned. There will no longer be a constitutional right to abortion as provided in those cases.

The issue of whether an abortion will be legal and any rules regarding it will revert back to the states for each of them to decide on their own.

That means Arizona will have the right to determine, through the legislature or another political process, whether, when and how abortions will be allowed in our state.

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