June 25, 2022

In a stunning 6-3 opinion delivered by Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, with Chief Justice Roberts concurring, the Court simply holds: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609268089992-0’); }); }

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

“The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion,” the Court wrote. First, the Court acknowledges the obvious, “The Constitution makes no express reference to a right to obtain an abortion,” and turns at once to the many theories that have been offered throughout the years to manipulate the constitutional text and read a right to abortion into the Constitution. “Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments,” the Court explains. Casey shifted that and “grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.”  Still, others tried the Equal Protection Clause of the Fourteenth Amendment.

It is refreshing to see the Court refuse to play the usual pro-abortion games in law and instead conclude, “regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures.”

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609270365559-0’); }); }

The Court explains the Due Process Constitutional protections apply to two categories of substantive rights, (1) those expressly guaranteed by the text of the Amendments in the Constitution, and (2) those deemed so fundamental that are not even mentioned. The Court assesses these traditionally by asking “whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’” And the Court rightfully finds “that the right to abortion is not deeply rooted in the Nation’s history and tradition.”

The conclusion is a noncontroversial statement of fact. As the Court notes:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. 

The bottom line is, “The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” which is what the Court imposed by judicial fiat in Roe — a capricious, policy-based, extra-constitutional restriction on lawmakers and the people to make judgments on preferred health policies by balancing competing values.

The Court also explains, “Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.” When Roe and Casey and other precedent tried to do that, they all failed to acknowledge the obvious, abortion “destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’” 

Finally, the Court tackles precedent. When pro-abortion activists are confronted with the hollowness of their substantive arguments, they inevitably turn to stare decisis, claiming the Court must uphold Roe even if wrongly decided because it must uphold its precedent.