Legally Speaking: Abortion no longer a constitutional right, states to make decision

Legally speaking, the Supreme Court did not ban abortion.

The Supreme Court issued its decision in Dobbs v. Jackson holding “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.”

Justice Samuel Alito wrote the majority opinion and was joined by Justices Thomas, Gorsuch, Kavanaugh, Barrett and Chief Justice Roberts, who wrote a separate concurring opinion.

Justices Breyer, Sotomayor and Kagan dissented. Within the decision Chief Justice Roberts agreed with the majority in upholding the Mississippi restriction — explained below — but moved to the dissent regarding the bigger decision of overturning Roe v. Wade.

Dobbs centers around Mississippi’s Gestational Age Act (Miss. Code. Ann. Section 41-41-191). The core 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.”

Arizona’s law, which goes into effect 90 days after our legislature adjourns, also bans abortions after 15 weeks, except in a medical emergency.

The day the Mississippi law 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 Court begins and ends the majority opinion by pointing out, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” Understatement of this century…this can be seen by the protests across the country and the various reactions from local and national politicians.

The holding concludes with returning the power to the states to decide whether to legalize abortion. Each state now has the right to pass its own laws regarding abortion.

“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.”

Arizona has already decided what it is going to do. Gov. Doug Ducey signed a bill into law making it unlawful to perform an abortion 15 weeks after conception unless there is a medical emergency (this goes into effect 90 days after our legislature adjourns).

There is another law on the books that makes it a Class 6 felony for a physician to knowingly perform an abortion, at any time, based on sex, race or fetal abnormality.

That being said, Arizona can change its mind. The legislature and the voters each have the power and authority to change the laws. Each has to follow the proper procedures of course.

Back to Dobbs, Justice Alito starts by breaking down Roe and then the Casey decision and explains why SCOTUS accepted the case. It then answers the question of “whether the Constitution … confers a right to obtain an abortion.”

The majority opinion addresses that central question in three steps.

First, the Court determines whether the 14th Amendment protects the right to an abortion. It concludes that it does not explaining it is not mentioned anywhere, or eluded to, in our Constitution.

Second, the Court examines whether the right to an abortion is rooted in our nation’s history and tradition. If it is rooted, then the right to an abortion could still be protected. The majority explains the right to an abortion is not deeply rooted in America’s history and tradition.

The opinion 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.”

Finally, the Court turns to whether the right to obtain an abortion is supported by other precedents, stare decisis (the legal concept that 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.”

Being a judge myself, I know this concept is very important to judges and often restrains their conduct, however, the majority in this case found it would be inappropriate to uphold the prior decisions of Roe and Casey simply because the decisions came before. In other words, if it was wrong in the first place then it shouldn’t be followed.

Justice Alito explains “in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.”

The decision gives five reasons why it overruled Roe and Casey.

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.” In other words, there is no support in the Constitution for abortion and the Court ignored the democratic process and substituted its will for those of Americans.

Second, Alito writes 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. In other words, what may be an “undue burden” to one person may not be one to another. It is not a concrete rule.

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.

#Legallyspeaking, Roe and Casey are overturned. There is no longer a constitutional right to abortion. However, the question of whether an abortion is legal has reverted back to the states for each of them to decide on their own.

That means Arizona has the right to determine, through the legislature or another political process, whether, when and how abortions will be allowed in our state. As explained above, Arizona has already done that.

That being said, #LegallySpeaking there are two things that are clear with the release of this decision, there is no constitutional right to an abortion, and, nothing is written in stone and can be changed.

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