The Supreme Court of the United States of America (SCOTUS) has overturned its landmark decision in Roe v Wade in Dobbs v. Jackson Women’s Health Organization with a 6:3 majority and effectively struck down the constitutional right to abortion in the country. Justice Alito wrote the majority decision which was supported by four other conservative judges – Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Chief Justice John G Roberts Jr wrote the concurring opinion. The dissenting opinion was written by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan.
What was the issue ?
The central issue before the court was the challenge made to Mississippi’s Gestational Age Act §41–41–191 (2018), provides that “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 Act defines “gestational age” as “the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman.” §3(f ). The said Act was challenged by the Respondent’s abortion clinic on the grounds alleging that the Act violated this Court’s precedents establishing a constitutional right to abortion.
What is case of ‘Roe v. Wade’?
Roe’s case struck down laws that made abortion illegal in many states, and ruled that abortion would be allowed up to the point of foetal viability, that means the time after which a foetus can survive outside the womb. Foetal viability was around 28 weeks (7 months) at the time of the ‘Roe’ judgment nearly 50 years ago; experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and latest findings show this could be further pegged at 22 weeks.
The majority decision of the Court
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality…..,”
wrote Justice Alito in his majority decision and rejected ‘Roe’ as “egregiously wrong from the start”, and held that both ‘Roe’ and ‘Casey’ — another landmark abortion judgment of the court from 1992 that reaffirmed the central tenet of ‘Roe’, that women have the right to terminate pregnancies up to the point of foetal viability — “must be overruled”. The majority held 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
The majority choose to argue that the until the later part of the 20th century, abortion right was unknown to Americans, while answering the question. The Court observes: “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” Overruling the Roe Case, the majority decision deprecates the reading of abortion right under Fourteenth Amendment. The Court rejected the argument that the abortion right is protected as
“In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty. “
Stating that liberty is “capricious term” the majority decision traces the history to set forth its argument for overruling the Roe Case. The Court held that the Fourteenth Amendment does not protect the right to an abortion.
Adopting the originalist approach to interpret the Constitution, the majority observes that “Constitutional analysis must begin with “the language of the instrument. The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.”
Overruling Roe on the count that the it fails to distinguish the cases which it relied on to read the abortion right under Fourteenth Amendment, the court held that the decisions relied by the Roe and Casy does not involve critical moral question posed by abortion. 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.
The dissenting opinion
“one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
was the dissenting opinion of Justice Breyer, Justice Sotomayor, and Justice Kagan. The dissenting opinion observes that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. The least Roe and Casy did was a reaffirmation of the same. The dissenting opinion also notes that neither law nor facts nor attitudes have provided any new reason to reach a different conclusion, thus moving away from the doctrine of stare decisis—a critical element of the rule of law. Penning down the minority opinion, the judges observes that
With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.
Meenakshi Choubey is an Advocate registered under Bar Council of Maharashtra & Goa has done her LLM from NMIMS University, Mumbai and BA LLB from GH Raisoni Law College, RTMNU Univeri
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The Supreme Court of the United States of America (SCOTUS) has overturned its landmark decision in Roe v Wade in Dobbs v. Jackson Women’s Health Organization with a 6:3 majority and effectively struck down the constitutional right to abortion in the country. Justice Alito wrote the majority decision which was supported by four other conservative judges – Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Chief Justice John G Roberts Jr wrote the concurring opinion. The dissenting opinion was written by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan.
What was the issue ?
The central issue before the court was the challenge made to Mississippi’s Gestational Age Act §41–41–191 (2018), provides that “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 Act defines “gestational age” as “the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman.” §3(f ). The said Act was challenged by the Respondent’s abortion clinic on the grounds alleging that the Act violated this Court’s precedents establishing a constitutional right to abortion.
What is case of ‘Roe v. Wade’?
Roe’s case struck down laws that made abortion illegal in many states, and ruled that abortion would be allowed up to the point of foetal viability, that means the time after which a foetus can survive outside the womb. Foetal viability was around 28 weeks (7 months) at the time of the ‘Roe’ judgment nearly 50 years ago; experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and latest findings show this could be further pegged at 22 weeks.
The majority decision of the Court
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality…..,”
wrote Justice Alito in his majority decision and rejected ‘Roe’ as “egregiously wrong from the start”, and held that both ‘Roe’ and ‘Casey’ — another landmark abortion judgment of the court from 1992 that reaffirmed the central tenet of ‘Roe’, that women have the right to terminate pregnancies up to the point of foetal viability — “must be overruled”. The majority held 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
The majority choose to argue that the until the later part of the 20th century, abortion right was unknown to Americans, while answering the question. The Court observes: “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” Overruling the Roe Case, the majority decision deprecates the reading of abortion right under Fourteenth Amendment. The Court rejected the argument that the abortion right is protected as
“In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty. “
Stating that liberty is “capricious term” the majority decision traces the history to set forth its argument for overruling the Roe Case. The Court held that the Fourteenth Amendment does not protect the right to an abortion.
Adopting the originalist approach to interpret the Constitution, the majority observes that “Constitutional analysis must begin with “the language of the instrument. The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.”
Overruling Roe on the count that the it fails to distinguish the cases which it relied on to read the abortion right under Fourteenth Amendment, the court held that the decisions relied by the Roe and Casy does not involve critical moral question posed by abortion. 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.
The dissenting opinion
“one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
was the dissenting opinion of Justice Breyer, Justice Sotomayor, and Justice Kagan. The dissenting opinion observes that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. The least Roe and Casy did was a reaffirmation of the same. The dissenting opinion also notes that neither law nor facts nor attitudes have provided any new reason to reach a different conclusion, thus moving away from the doctrine of stare decisis—a critical element of the rule of law. Penning down the minority opinion, the judges observes that
With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.
Meenakshi Choubey is an Advocate registered under Bar Council of Maharashtra & Goa has done her LLM from NMIMS University, Mumbai and BA LLB from GH Raisoni Law College, RTMNU Univeri
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
You may follow us on Instagram and LinkedIn for daily legal updates.
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