US Supreme Court Upholds Mississippi Abortion Ban And Overrules Roe V. Wade: Dobbs V. Jackson Women's Health Organization: A Comprehensive Analysis

Date of judgement:
June 24, 2022

Case Name
Dobbs, State Health Officer Of The Mississippi Department Of Health, Et Al. Vs. Jackson Womens Health Organization

Bench:
JUSTICE ALITO, JUSTICE Amy Coney Barrett, JUSTICE Neil Gorsuch
CHIEF JUSTICE ROBERTS (concurring)
JUSTICE THOMAS (concurring)
JUSTICE KAVANAUGH (concurring)
JUSTICE BREYER, JUSTICE SOTOMAYOR and JUSTICE KAGAN (dissenting)

SUBJECT

In a judgment likely to have far reaching consequences, the US Supreme Court while overruling the judgment of Roe v. Wade held the Mississippi’s Gestational Age Act to be Constitutional.

OVERVIEW

• In 1973, the US Supreme Court had decided the case of Roe v. Wade and had held that the 14th Amendment protected the rights of an individual to decide upon matters relating to marriage, procreation and contraception.
• Subsequently, in the judgment of Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the judgment of Roe was upheld on the basis of the principle of stare decisis. However, Roe was party overruled in Casey and the States were prevented from imposing "undue" burden on women's abortion rights.
• The State of Mississippi passed a law which made abortions after 15 weeks of pregnancy illegal. The Mississippi’s Gestational Age Act penalized those who intentionally performed or induced abortion after 15 weeks of pregnancy. The only two exceptions being a case of emergency and several fetalab normality.
• This law was under challenge in the case of Dobbs v. Jackson Women's Health Organization for being violative of the law laid down in Roe v. Wade. 26 States appealed to the Supreme Court for overruling the Roe judgment.
• The State of Mississippi pleaded that the judgment of Roe v. Wade must be overruled.

ARGUMENTS BY THE PETITIONER

• The petitioner contended that by the 15th week, most abortion require the 'use of surgical instruments to crush and tear the unborn child".
• If the woman is unable to raise the child, then the State laws provide for women to anonymously drop off their babies for adoption. The insurances and government grants also cover the pregnancy related medical care.

ARGUMENTS BY THE RESPONDENT

• The respondents primarily stated that the history of criminalization of abortion cannot be considered to be a ground for upholding the Mississippi law
• The respondents further contended that even if history is considered, pre-quickening abortions were not criminalized by several States.
• The respondents further contended that the right to abortion was protected by the Equal Protection Clause of the Fourteenth Amendment.
• Furthermore, the Due Process Clause of the Fourteenth Amendment provided for abortion rights.
• The changes in the society require recognition of a woman's right to abortion.

ISSUES RAISED

• Whether the Mississippi’s Gestational Age Act was Constitutional?
• Whether Roe v. Wade as well as Planned Parenthood v. Casey were correctly decided?
• Whether the 14th Amendment protect the right to abortion?

JUDGMENT ANALYSIS

• The Court held that historically, abortion had been criminalized by several common law countries.
• The Court held that the right to abortion was not protected by the Constitution and subsequently overruled the judgment of Roe v. Wade as well as Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).
• The judgment overruled the principle laid down in the case of Planned Parenthood v. Casey. In that case, the Court, while relying on Roe v. Wade had held that the States cannot frame laws which impose an undue burden on those who try to get abortions.
• The Court observed that Roe held right to abortion to be contained in the right to privacy. But neither right to abortion nor right to privacy find any mention in the Constitution.
• The Court held that Casey merely upheld Roe on the basis on stare decisis without analysing the rationale on which it was based. Furthermore, Casey did not expressly laid down what amounted to an 'undue" burden on a woman's abortion rights.
• Casey and Roe destroyed an unborn human life and the right to abortion was nowhere provided in the American Constitution.
• The right to abortion was not protected by the equal protection clause of the Fourteenth Amendment as the abortion laws were not founded on sex-based classifications and were governed by standards similar to other health laws.
• The Court held that the Due Process Clause of the 14th Amendment protected only those fundamental rights which, even though not mentioned in the Constitution, have been deeply rooted in the nation's "history and tradition".
• The "liberty" referred to in the 14th Amendment did not protect the right to abortion either. At the time of Roe's decision, abortion was criminalized in most States and Roe "either ignored or misstated this history".
• The "liberty" could vary from State to State. In some States the voters might feel that abortion rights must be more extensive than those which are conferred by Roe while in other States the voters might demand tighter restrictions on abortion.
• The Court thus ruled that the power to decide on the abortion rights must be conferred on the legislatures. The Court ruled that Mississippi’s Gestational Age Act was Constitutional as it satisfied the "rational-basis review".
• The Court held that the State has an interest in protecting fetal life. The majority noted that while the dissent was concerned about the plight and hardships of poor women, it did not consider the interest of the State in protecting parental life.
• The dissent, in the opinion of the majority, did not recognise the fetus's right to life.
• The Court finally concluded that there were five factors on the basis of which Roe was to be overruled

1. "the nature of their error,
2. the quality of their reasoning,
3. the “workability” of the rules they imposed on the country,
4. their disruptive effect on other areas of the law,
5. absence of concrete reliance."

• The Court however attempted to address the fears relating to the far reaching consequences of the judgment and stated that the opinion of the Court was confined to right to abortion and did not doubt the validity of other judgments establishing for rights other than right to abortion.

DISSENTING OPINION

• Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented with the majority opinion.
• They observed that banning abortion leads to forced childbirth which affects the freedom of a woman.
• Roe protected the liberty of women and prevented the government from interfering or controlling a woman's life.
• The judges noted that Roe recognised the "profoundly different" opinions regarding abortion and thus attempted to strike a balance by permitting States to prevent abortion after fetal viability. While the State could also prohibit abortion before fetal viability, it could not place substantial obstancles in the woman's right to abortion.
• The Court noted that this balance was disrupted by the instant judgment. While the Mississippi law imposed prohibition on abortion after 15 weeks, the instant judgment permitted other States to impose such restrictions right from the beginning of the pregnancy.
• The judges highlighted what could be the consequences of the judgment. A woman could be forced to carry the child of her rapist or to carry a fetus which has severe physical abnormalities. Some states may prohibit abortion even when it risks the life of the mother. There could be some States who will imposes travel restrictions on women trying to go to other States to get abortions where it is not illegal to do so.

CONCLUSION

There are various drawbacks of the judgment. It takes away the rights of private autonomy. Moreover, the Court considered that since most of the States had criminalized abortion before Roe, Roe should have considered the history and upheld the ban. This logic seems faulty as the Courts across the world, with the passage of time, have conferred rights on individual which were once denied. Rights to privacy, access to healthcare, etc., were once too denied but today they stand as fundamental rights in several modern nations.

Click here to download the original copy of the judgement