Dean M. Harris, J.D., Associate Professor (Retired), Department of Health Policy and Management, Gillings School of Global Public Health, University of North Carolina at Chapel Hill, USA, Dean_Harris unc.edu

Former US President Donald Trump is out of the White House--at least for now. However, one of his legacies is an extremely right-wing Supreme Court. With its new right-wing majority, the Supreme Court overruled the longstanding abortion precedent of Roe v. Wade . On June 24, 2022, the Court held that the US Constitution does not include a right of access to abortion. Dobbs v. Jackson Women’s Health Org ., 142 S.Ct. 2228 (2022). Therefore, state governments may prohibit or severely restrict abortion, as many states have already done. 

The implied constitutional right of privacy

The US Constitution has no explicit right of autonomy to make medical decisions. Moreover, the US is not a party to any enforceable international agreement about privacy (such as the right to respect for private and family life in Article 8 of the European Convention on Human Rights). Since 1891, however, the US Supreme Court had recognized an implied right or “zone” of privacy. This includes the implied right of people of different races to marry.

Eventually, the implied right of privacy included access to contraception and abortion. In 1965, the US Supreme Court held that a state government could not prevent married couples from receiving medical advice about contraceptives, and in 1972 that right was extended to unmarried people. In 1973, the Supreme Court held that a Texas state abortion law violated the right of privacy under the US Constitution, because that state law only allowed abortion to save the life of the mother. Roe v. Wade , 410 U.S. 113 (1973).

The Court’s decision in Roe balanced individual rights and state authority. In effect, that decision was a compromise to protect both reproductive rights and state power. A compromise does not make everyone happy, but rather makes everyone partly unhappy.

The right-wing majority on the Supreme Court overruled Roe v. Wade

Five of the nine justices voted to overturn Roe . Of those five, three (Gorsuch, Kavanaugh, and Barrett) were nominated by Donald Trump (who lost the 2016 popular vote, but won the presidency in the Electoral College). In effect, Trump had made a deal with some conservative religious groups that he would nominate anti-abortion justices, in exchange for political support from those groups in the 2016 presidential election. Those groups supported Trump mainly because of abortion, despite his personal behavior, abuse of women, and lies.

The legal issue in Dobbs involved the concept of liberty under the “due process clause” of the 14^th Amendment to the Constitution. The new right-wing majority on the Supreme Court used a very restrictive concept of liberty. According to the majority, the only substantive rights that are protected by the “due process clause” are: (a) rights explicitly stated in the Constitution; or (b) rights that are part of US history and tradition. (142 S.Ct. at 2246-49).

Under that restrictive approach, the majority concluded that there is no right to abortion. First, “abortion” is not mentioned in the 14^th Amendment, or anywhere else in the Constitution. Second, when the 14^th Amendment was ratified in 1868, there was no country-wide right to abortion, and people did not think the 14^th Amendment provided that right. ( Id . at 2323)(dissent).

In contrast, the three dissenting justices used a more expansive concept of liberty. According to the dissent, “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did.” ( Id . at 2324) (dissent). Instead, the dissenters argued that the authors of the Constitution used general terms such as “liberty,” and the authors knew that the meaning of those terms would evolve and adapt in a distant future they could not imagine. ( Id . at 2325-26)(dissent). The dissenters’ approach to rights is similar to the way in which the European Court of Human Rights interprets the general term “private life” in ECHR Art. 8 “in line with social and technological developments.” (ECHR Guide, 25).

Many states have already taken action to restrict abortion

The Dobbs decision allows state governments to prohibit all--or almost all--abortions. Now, government may ban abortion from the time of conception, without balancing a pregnant woman’s interests. (142 S.Ct. at 2317-18; 2323) (dissent). Also, courts must uphold abortion laws that are “rational,” and the right-wing majority says that fetal protection is rational. ( Id .)

For example, Tennessee’s law has no exception to allow abortion in cases of rape or incest. (Tenn. Code. Ann.§39-15-213). Texas’ law has vague exceptions for a pregnant woman’s “risk of death or … serious risk of substantial impairment of a major bodily function.” (Texas Health & Safety Code §170A.001-7). As a practical matter, doctors in Texas might not be willing to risk life in prison, on the basis of vague exceptions in a medically complex case.

The Dobbs decision leaves many complex legal issues for litigation in the future. For example, may states prohibit pregnant women in their states from traveling to a state that allows abortion, or punish the people who helped them to travel there?

After the decision in Dobbs , the Biden administration looked for ways that the federal government could promote access to abortion. However, the authority of the executive branch of federal government (the administration) is very limited on issues of abortion, and it is unlikely that the legislative branch (Congress) could pass new legislation to protect access to abortion.  

Most Americans wanted the rights in Roe to remain in effect. More than 60% of Americans said abortion should be legal in all or most cases, and 70% were opposed to the Court completely overturning Roe . In theory, citizens in a democracy should be able to make their laws conform to opinions and values of the majority. However, this problem cannot be solved by the political process in the US, because the Constitution does not guarantee free and fair elections.

In fact, the US Constitution imposes significant barriers to majority rule. In the Electoral College system for presidential elections, the president is not necessarily the candidate who gets the most votes of all people in the US. In addition, the US Constitution generally allows each state government to control the system of elections for federal offices, including elections for the President. Finally, the US Senate (the upper house of Congress) can be controlled by states that have small populations, because all states have two senators regardless of their population.

Misrepresentations in the majority’s opinion in Dobbs

On the surface, the Supreme Court’s decision in Dobbs appears to be a doctrinal debate about how broadly or narrowly to interpret the concept of liberty in the due process clause, with a majority of justices supporting a very narrow interpretation. In reality, it is likely that the majority’s discussion of the due process clause was mere “window-dressing,” in an attempt to justify a decision that had already been made on the grounds of politics, culture, and religion. The majority’s opinion contains at least three significant misrepresentations. That is the best evidence that the majority’s discussion of legal doctrine was a mere pretext.

First, the right-wing majority claimed that it was allowing the American people to make their own decisions about abortion through the democratic process, rather than imposing a decision by unelected judges. The majority stated that “the authority to regulate abortion must be returned to the people and their elected representatives.” (142 S.Ct. at 2279). That is a gross misrepresentation about the US political system, and the Supreme Court knows it. State legislatures do not necessarily represent the people in their states or the will of the majority.

The second misrepresentation in Dobbs is that the Court was allowing each state to make its own decision about abortion, as a matter of “states’ rights.” That was a misrepresentation, because many opponents of abortion really want a federal law to prohibit abortion in every state and to recognize fetuses as persons.  In fact, after the decision in Dobbs , Republican members of Congress introduced proposed legislation to regulate abortion at the federal level.

The third misrepresentation by the Court in Dobbs is that its decision to overrule Roe will not lead to overruling other implied privacy rights. Four justices in the majority insisted that overruling Roe would not affect other cases, supposedly because abortion is different from other cases. (142 S.Ct. at 2277-78). In reality, other implied rights of privacy could not survive the majority’s restrictive legal standard. As pointed out by the dissenters, the implied rights of privacy for access to contraceptives and equality for same-sex marriage would not be upheld in the face of legal challenges, because they were not recognized in 1868. ( Id . at 2319-20) (dissent).

Practical consequences of the Dobbs decision

Laws that prohibit abortion (or make abortion a crime) do not prevent abortion. Those laws only prevent safe abortions. Many people will continue to seek abortion services, including both surgical procedures and abortion pills. Some people will die as a result of unsafe procedures or the fear of seeking follow-up care in the event of emergency. As usual, the burden of those consequences will fall most heavily on people who are poor or otherwise disadvantaged.

In the US, other severe consequences will arise because the US provides less protection for privacy of health information than the European Union and many other countries. In states that prohibit abortion, searching online for abortion drugs (or communicating about abortion on social media) could provide evidence for a criminal prosecution.