Supreme Court Overturns Roe v. Wade and Planned Parenthood v. Casey in Dobbs
The American Center for Law and Justice (ACLJ) thanks God for, and rejoices in, today’s historic Supreme Court decision holding that there is no constitutional right to abortion.
We had filed three separate friend-of-the-court briefs in Dobbs v. Jackson Women’s Health Organization urging the Court to overturn Roe v. Wade, the 1973 ruling that invented a right to abortion and unleashed abortion on demand in the United States. One brief was filed on behalf of the ACLJ itself and joined by Bioethics Defense Fund.
A second brief was filed on behalf of the Elliot Institute. The third brief was submitted by the European Centre for Law and Justice. Each amicus brief offered key points and arguments in support of overruling Roe.
At issue in Dobbs was a Mississippi statute largely banning abortion after 15 weeks of pregnancy. The pro-abortion challengers argued that bans on abortion before viability – the time when the baby can survive outside the womb – were unconstitutional under Roe and Casey, and that 15 weeks of pregnancy is clearly before viability. After Mississippi lost in the lower courts, it asked the Supreme Court to review the case. The ACLJ filed an amicus brief supporting Mississippi’s petition for review in Dobbs. The Supreme Court granted the petition on May 17, and on July 22, Mississippi filed its opening brief urging the Supreme Court to overrule Roe.
The Court heard oral arguments on December 1, 2021. The abortion side contended in its written arguments (Resp. Br. p. 43) that Mississippi’s law simply could not be squared with Roe and Casey: “any abandonment of viability would be no different than overruling Casey and Roe entirely.”
In its ruling in Dobbs, the Supreme Court did precisely that:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.
This is a major, historic victory for the pro-life movement. The Court declared – correctly – that Roe was a terrible decision:
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
Importantly, the Supreme Court declared not just that Roe was incorrect, but that the supposed right to abort babies could not be transplanted to some other constitutional ground: “no such right is implicitly protected by any constitutional provision,” the Court noted (emphasis added).
We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
Henceforth, laws regulating or restricting abortion will be reviewed under the so-called “rational basis” standard. That means, the Court explains:
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
Note the language: “at all stages of development”. States now once again enjoy the authority to protect human beings throughout their lives, not just after birth or some arbitrary point in pregnancy.
Here at the ACLJ we took particular satisfaction with two steps in the Court’s reasoning.
First, our win in the 1993 case of Bray v. Alexandria Women’s Health Clinic played a role in today’s victory. In Bray, we successfully argued that opposition to abortion is not hostility to women but rather represents legitimate opposition to killing babies before birth.
The Dobbs opinion cited Bray for that proposition in rejecting the claim that abortion restrictions are a form of sex discrimination:
[W]e briefly address one additional constitutional provision that some of [the abortion side’s] amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. . . . Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–274 (1993) (internal quotation marks omitted). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.
Second, and ironically, our loss in a different case – Hill v. Colorado – helped as well. In Hill, we challenged an anti-speech “bubble zone” ordinance outside abortion businesses. The Supreme Court rejected our challenge in 2000. But in Dobbs, the majority used that terrible ruling as an illustration of how the Court’s abortion cases after Roe “have distorted First Amendment doctrines.” That means the Dobbs Court drew good out of a bad decision – using Hill against Roe – and in the process, plainly indicated that Hill is no longer valid as a First Amendment precedent.
The Dobbs ruling is a victory for another very big reason: The Court majority stood strong against intense public and political pressure. As the Court emphatically stated:
We cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.
While Dobbs is a major, historic victory for law and life, the pro-life movement still has an immense task ahead of it. States now may restrict abortion. Whether they do so or not is a state-by-state struggle. The ACLJ stands ready to offer its expertise to guide any such efforts in defense of human life.