Does a Woman Have a Constitutional Right to Abort a Human Life? Part I

Let us begin with the premise that the issue of the right to have an abortion is of sufficient importance to society that a responsible defense of and support for a particular opinion requires knowledge of the reasons which support holding or rejecting each opinion. As with any decision in life, an intelligent and responsible choice requires a clear and accurate understanding of the choices available and the consequences which follow from any given choice. The decision to support or reject a specific opinion should not be based upon ignorance, misinformation, or childishness: “I’m just not interested in reason, this is what I want [or believe], and that settles the matter”.

In the majority opinion of June 24, 2022, the Supreme Court carefully sets forth in explicit detail the judicial requirements and limits of the Court’s “stare decisis” standard, and then applied that standard to the Roe v. Wade precedent.

The majority of Judges also provided a detailed examination and evaluation of each facet of the history of the issues that ultimately led them to the conclusion that the earlier decision of Roe V. Wade was without Constitutional or historic national support.  They concluded that, in practical fact, the “Roe” decision is an example of Judges, imposing upon society their personal opinion of how things should be, rather than an accurate affirmation of what the words of the Constitution truly meant and thus do or do not require.

It is significant that the majority of Judges in Dobbs carefully avoided expressing any opinion on the issue of whether  “a woman does or does not have a right, independent of the Constitution, to abort the human life in her womb.”  In “Dobbs”, the opinion of the majority of the Judges of the Supreme Court explicitly acknowledged and affirmed that the case before them involved only the issue of whether or not the Constitution affirmed and protected “a woman’s right” to abort the human life in her womb.  The majority of Judges went even further by affirming that: since the Constitution is silent on that issue, a decision to legally allow or prohibit abortion belongs to the people of the United States; rather than to the opinion of five judges of the Supreme Court.

The Court’s majority opinion begins with a short clear statement of the basic issues involved:

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. Still others in a third group think that abortion should be allowed under some but not all cir­cumstances, and those within this group hold a variety of views about the particular restrictions that should be im­posed (Opinion of the Court pg 1, hereafter cited as opinion pg 1)

Next, the majority opinion gives a brief legal history of abortion and the status of the law at the time of the Roe v. Wade decision in which the “Roe” Court held that the Constitution confers a broad right to obtain an abortion even though there is no explicit mention of abortion in the Constitution. This part also identifies some of the problems faced by those who defend Roe v. Wade, for example:

One prominent constitutional scholar wrote that he ‘would vote for a statute very much like the one the Court ended up drafting’ if he were ‘a legislator,’ but his assessment of Roe was memorable and brutal: Roe was ‘not constitutional law’ at all and gave ‘al­most no sense of an obligation to try to be'(opinion pg 2)

Justice Byron White stated in his dissent to Roe v. Wade that the decision represented the “exercise of raw judicial power” (opinion pg 3).

The majority opinion then notes that “Planned Parenthood of Southeastern Pa. v. Casey”, hereafter identified as Casey, is cited as confirming Roe v. Wade, which is “technically” true. But on closer examination, they note that Casey “threw out” –  thus overruling – many of Roe v. Wade’s decisions about abortion. And the Casey decision involved a three-way split in a judicial opinion. Ultimately, an unexamined “stare decisis” was the dominant reason why Casey accepted Roe v. Wade. The Casey decision did not endorse the Roe v. Wade reasoning.  In Casey, according to the majority opinion:

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 (opinion pg 3).      

The majority opinion adds the significant information that interest in the Dobbs decision extends well beyond the State of Mississippi:

 And in this case, 26 States have expressly asked this Court to over­rule Roe and Casey and allow the States to regulate or pro­hibit pre-viability abortions.

Before us now is one such state law. 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. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Missis­sippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, ‘would be no different than overruling Casey and Roe en­tirely.’ … They contend that ‘no half-measures’ are available and that we must either reaf­firm or overrule Roe and Casey (opinion pg 4 & 5).

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 (1997).

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Four­teenth Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders char­acterize the abortion right as similar to the rights recog­nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowl­edged because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un­born human being.’

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepen division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The per­missibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democ­racy: by citizens trying to persuade one another and then voting.’ Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand ( opinion pg 5, 6).

The law at issue in this case, Mississippi’s Gestational Age Act 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.’ To support this Act, the legislature made a series of fac­tual findings. …. The legisla­ture then found that at 5 or 6 weeks’ gestational age an ‘un­born human being’s heart begins beating’; at 8 weeks the ‘unborn human being begins to move about in the womb’; at 9 weeks ‘all basic physiological functions are present’; at 10 weeks ‘vital organs begin to function,’ and ‘[h]air, fin­gernails, and toenails . . . begin to form;; at 11 weeks ‘an unborn human being’s diaphragm is developing,’ and he or she may ‘move about freely in the womb’; and at 12 weeks the ‘unborn human being’ has ‘taken on “the human form” in all relevant respects.’ …. It found that most abor­tions after 15 weeks employ ‘dilation and evacuation proce­dures which involve the use of surgical instruments to crush and tear the unborn child,’ and it concluded that the ‘intentional commitment of such acts for non therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profes­sion (opinion pg 6, 7).

Respondents …. filed suit in Federal District Court against various Mississippi officials, alleging that the Act violated this Court’s precedents estab­lishing a constitutional right to abortion (opinion pg 7).

Do notice that the respondents themselves fully acknowledge and affirm that it was only  “the Court’s precedents” that established “a constitutional right to abortion”, rather than the crucially needed detail that a precedent of the Supreme Court confirmed that the Constitution itself proclaimed such a right.  That distinction, that detail, is the heart and core of the issue just resolved by this Court!

The Court’s majority opinion then clearly explains the judicial process by which it ultimately reached its decision.

We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe’s ‘central holding’ based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based. We, therefore, turn to the question that the Casey plurality did not consider, and we address that question in three steps. First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right. Second, we examine whether the right at issue, in this case, is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’ Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is sup­ported by other precedents (opinion pg 8 & 9).

Constitutional analysis must begin with “the language of the instrument,”’ Gibbons v. Ogden, 9 Wheat. 1, 186–189 (1824), which offers a ‘fixed standard’ for ascertaining what our founding document means, 1 J. Story, Commen­taries on the Constitution of the United States §399, p. 383(1833). 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.

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitu­tional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments    (opinion pg 9).

Roe expressed the ‘feeling’ that the Fourteenth Amendment was the pro­vision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Consti­tution and that specifying its exact location was not of par­amount importance. The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause (opinion pg 10).

I insert here a personal observation that seems to me to be of major importance when examining this issue. Those who claim that the Federal Government or any state can or should affirm that a woman has a right to kill the human life in her womb appears to directly and explicitly deny to the “human life” in the woman’s womb is both “equal protection of the law” and other provisions of the XIV Amendment, which specifically states that:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unite states; nor shall any state deprive any person of life, liberty, or property, without due process of law;  nor deny to any person within its jurisdiction the equal protection of the laws (opinion pg 10).

Presented next is a brief listing of the major issues of interest to the public as distinct from various fine technical points of the law.:

But our decisions [i.e., earlier Supreme Court decisions JJH] 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, 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.

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 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.’ Timbs v. Indiana, McDonald, Glucksberg. And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.