When a draft opinion in Dobbs was leaked it was termed a “betrayal of trust.” But the betrayal is not of the Court’s rules, but the Court’s betrayal of American women. In Dobbs v. Jackson Women’s Health Organization, the Court denies women equal protection of laws and the fundamental right of privacy, both of which should assure women the right to decide to continue or terminate a pregnancy. Along with the initial shock, there was the faint hope that the “draft” opinion would be edited by its author, Justice Samuel Alito, to make it at least arguably based on law. But Justice Alito made no changes in his smug text other than adding snide comments on Chief Justice Roberts concurrence (Roberts would not overrule Roe entirely) and the dissenting opinion by Justices Sotomayor, Kagan and Breyer). Dobbs, in which the Court explicitly overrules both Roe v. Wade and Planned Parenthood v. Casey, marks the first time the Court has ever revoked a right it has recognized, and means women who live in states that will now limit or prohibit abortions (approximately half of all states), will be less free than their mothers and grandmothers were to make reproductive decisions.
Alito’s belligerent and arrogant majority opinion basically says that the Court can overturn Roe now simply because it has three new Justices who despise the Roe v. Wade opinion, which they gleefully describe as “egregiously wrong from the start.” Never mind that the opinion stood for 20 years before being re-affirmed in Casey in 1992, and for another 30 years since then, with Justices appointed by presidents from both parties who endorsed its core holding over and over again during this period. Never mind. Trump’s three new Justices joined with two Justices from the radical right of the Court (Alito and Thomas) to strike down Roe (and Casey) completely. The majority not only despises Roe but thinks it was a political opinion, not a legal one, and was based on the application of “raw judicial power.” But these descriptors more accurately apply to the Dobbs opinion itself.
Dobbs’ renunciation of women’s constitutional rights is shocking, especially closely following Senate hearings for the three Trump appointments who seemed to indicate that they would take stare decisis (following precedents) seriously, and that Roe had a special stare decisis stature since it has already been re-affirmed in Casey. But Senate confirmation hearings have been all but useless as sources of information about a potential Justice’s judicial philosophy following the failure of the last candidate (Robert Bork) to be rejected based on his personal views of the Constitution. No one should be surprised. But we should be saddened and disappointed that the Court’s members are acting (and speaking) much more like politicians than as judges. It is in this sense that the Court can no longer be trusted to fairly follow the “rule of law.” The early consensus is that the Court has destroyed its credibility with this exercise of raw political power divorced both from the reality of women’s lives and reproductive rights, and any credible judicial reasoning. Remarkably the Court justifies taking rights away from women by telling them that they should go out and vote (a right women did not have, of course, either under the original Constitution or the 1868 14th amendment): “Our decision returns the issue of abortion to the legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”
Roe v. Wade was initially decided at the time bioethics was just being recognized as a field. No bioethics commission ever took up reproductive rights—likely deciding that rational discussion was unlikely to move opinions on this subject. But some bioethicists did participate in the constitutional arena in the 1980s and 1990s. The issues then were much the same as they were in 1973 and remain today. Excerpts from two of the briefs to the Supreme Court (both written by me and professors Leonard Glantz and Wendy Mariner on behalf of 50+ bioethicists) highlight continuing core disputes.
The “Brief for Bioethicists for Privacy” (1989) argues simply that Roe should be upheld: “Without the shield of the constitutional right of privacy, citizens would have no protection form state interventions in private medical matters, because states would be free to legislate virtually any restrictions on individual treatment decisions that even a bare majority of legislators wished.” This is particularly important today when new forms of medical treatment and knowledge require patients to make controversial choices. It would not be far-fetched to hypothesize a state that would choose to outlaw the use of all prenatal screening techniques by both public and private physicians. (It now appears that this may well come to pass, as well as limitations on IVF and various methods of birth control.)
The “Brief for Bioethics Professors” (1996) was filed in the physician-assisted suicide cases. It argued that the Court did not have to overrule Roe if it decided there was no constitutional right to physician-assisted suicide because the two acts were radically different–one being a long-standing and legitimate medical procedure employed to promote life and health, the other having no medical practice status:
“A decision to commit suicide does not further the goals of reproductive liberty, equality and full participation in the ‘economic and social life of the nation, values preserved by the Court in Casey. Therefore, the Second Circuit Court of Appeals was correct to reject a substantive due process right to assistance in suicide based on the abortion cases.”
Dobbs holds that we must look at the year the Fourteenth Amendment was ratified (1868) to determine if there was a nationwide right to end a pregnancy that could support recognizing a woman’s right to reproductive liberty. But of course there wasn’t (nor were there reliable contraceptives). As the dissent argues persuasively, “Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”
There have always been seemingly intractable issues exposed in the abortion debate, and neither Roe nor Casey solved them. Nonetheless the great majority of Justices who ruled on Roe-related cases since 1973 acted in good faith and tried to apply the law as established in Roe and Casey. That cannot be said of the majority in Dobbs which not only destroys the constitutional right of women to control their reproduction, but also reinforces the widespread cynicism about the integrity of those who make up the government of the United States, tragically including the majority of the Justices of the Supreme Court.
George J. Annas, JD, MPH is a Professor and Director at the Center for Health Law, Ethics & Human Rights at Boston University School of Public Health.