CIVIL RIGHTS-ABORTION

July 5th, 2022 by Rieders Travis in Civil Rights

Dobbs v. Jackson Women’s Health Org., 2022 U.S. LEXIS 3057 (S. Ct. June 24, 2022) (Alito, J.)  this Court decided Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.  Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” i.e., the ability to survive outside the womb. Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), the Court revisited Roe, but the Members of the Court split three ways. Two Justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more of its authors might have “reservations” about whether the Constitution protects a right to abortion. But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s “central holding”—that a State may not constitutionally protect fetal life before “viability”—even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law. Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb. 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. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (internal quotation marks omitted). The law at issue in this case, Mississippi’s Gestational Age Act, see Miss. Code Ann. §41-41-191 (2018), contains this central provision: “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.” §4(b). The underlying theory on which this argument rests—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 7 Pet. 243, 247-251, 8 L. Ed. 672 (1833) (opinion for the Court by Marshall, C. J.), but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. See McDonald, 561 U.S., at 763-767, 130 S. Ct. 3020, 177 L. Ed. 2d 894, and nn. 12-13. The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In sum, although common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy. The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].” 521 U.S., at 719, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772. Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, 410 U.S., at 154, 93 S. Ct. 705, 35 L. Ed. 2d 147, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” 505 U.S., at 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U.S., at 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U.S., at 159, 93 S. Ct. 705, 35 L. Ed. 2d 147 (abortion is “inherently different”); Casey, 505 U. S., at 852, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. Because the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.” Post, at 18 (internal quotation marks omitted). This vague formulation imposes no clear restraints on what Justice White called the “exercise of raw judicial power,” Doe, 410 U.S., at 222, 93 S. Ct. 705, 35 L. Ed. 2d 201 (dissenting opinion), and while the dissent claims that its standard “does not mean anything goes,” Post, at 17, any real restraints are hard to discern. The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in GriswoldEisenstadtLawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance. Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’” Post, at 8. No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and Municipal Employees, 585 U. S. ___, ___-___, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018) (slip op., at 34-35); Ramos v. Louisiana, 590 U. S. ___, ___-___, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) (Kavanaugh, J., concurring in part) (slip op., at 7-9). In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. See 410 U.S., at 163-164, 93 S. Ct. 705, 35 L. Ed. 2d 147. Dividing pregnancy into three trimesters, the Court imposed special rules for each. During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Id., at 164, 93 S. Ct. 705, 35 L. Ed. 2d 147. After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Ibid. Finally, in “the stage subsequent to viability,” which in 1973 roughly coincided with the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id., at 164-165, 93 S. Ct. 705, 35 L. Ed. 2d 147. The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy. When Casey revisited Roe almost 20 years later, very little of Roe’s reasoning was defended or preserved. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause505 U. S., at 846, 112 S. Ct. 2791, 120 L. Ed. 2d 674. The Court did not reaffirm Roe’s erroneous account of abortion history. In fact, none of the Justices in the majority said anything about the history of the abortion right. And as for precedent, the Court relied on essentially the same body of cases that Roe had cited. Thus, with respect to the standard grounds for constitutional decisionmaking—text, history, and precedent—Casey did not attempt to bolster Roe’s reasoning. Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent. Casey’s “undue burden” test has proved to be unworkable. “[P]lucked from nowhere,” 505 U. S., at 965, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (opinion of Rehnquist, C. J.), it “seems calculated to perpetuate give-it-a-try litigation” before judges assigned an unwieldy and inappropriate task. Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 551, 111 S. Ct. 1950, 114 L. Ed. 2d 572 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). Continued adherence to that standard would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.” Payne, 501 U. S., at 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720. Finally, the dissent suggests that our decision calls into question GriswoldEisenstadtLawrence, and ObergefellPost, at 4-5, 26-27, n. 8. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150, 93 S. Ct. 705, 35 L. Ed. 2d 147 (emphasis deleted); Casey, 505 U. S., at 852, 112 S. Ct. 2791, 120 L. Ed. 2d 674. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence. We end this opinion where we began. Abortion presents a profound moral question.  The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]