The Dobbs Case: Justice Alito Leads the Court Back to the Constitution

Judges cannot be governed by various segments of public opinion or shifting cultural mores no matter how shrill their voices.

By John A. Sparks

Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization holds that both Roe v. Wade and Planned Parenthood v. Casey must be overturned. The predicted impact on elective abortions has been well-rehearsed in the print and electronic press and on social media. In the case before the court, Mississippi’s Gestational Age Act was upheld, making abortion in that state illegal after 15 weeks. Furthermore, the effect of the ruling makes the abortion laws of other states — some virtually banning abortions and others allowing them with few limits — govern the availability of abortion to their citizenry. Finally, there will no longer be a recognized federal constitutional “right” to abortion. As Alito summarizes: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The majority opinion and the court’s strong position on this issue is, of course, critical to protect the unborn. There is already much rejoicing over that result. That lives will be saved by this decision is certain. However, there may be an even more significant long-term effect of the Alito opinion. His “opinion of the Court” joined by four others, with Justice John Roberts’ joining in part, is leading the court back to the Constitution.

The opinion is a long one because Alito must undo so much that has led the court away from sound constitutional jurisprudence on this issue and others. A single editorial cannot do justice to his careful analysis. However, here are the key points:

Alito starts with his fundamental commitment: “We begin by considering the critical question whether the Constitution, properly understood, confers the right to obtain an abortion.” The answer is: no. There is no express reference to the right to obtain an abortion found in the Constitution, which is to be the court’s lodestar. However, is such a right “somehow implicit in the constitutional text?”

Alito is direct but careful. He calls attention to the “remarkably loose” way that the Roe majority treated the text of the Constitution. It held that there was a right to abortion, “which is not mentioned in the Constitution” and based that supposed right upon a right to privacy, “which is also not mentioned.” Even the “right of privacy” could only be found as if springing “from no fewer than five different constitutional provisions.” With such a shaky constitutional foundation, Alito says that the legal and logical problems with Roe surfaced almost immediately. Legal experts normally not on the conservative side of the spectrum and generally in favor of abortion criticized Roe for its weak, sometimes inscrutable contours. John Hart Ely said simply that Roe “was not constitutional law,” and Mark Tushnet termed it “a totally unreasoned opinion.”

By the time the court heard Planned Parenthood v. Casey (1992) almost two decades later, Alito writes that the justices abandoned the “right to privacy” approach. The Casey court shifted to regarding the right to an abortion as an implied “liberty” right under the Due Process Clause of the Fourteenth Amendment. Moreover, Casey said that restrictions on that right would not be allowed if they imposed an “undue burden” on women. Alito’s opinion rightly questions this unwarranted shift to “liberty,” coupled with the vagueness about what constituted an “undue burden.” Casey frankly produced many more years of the court wrestling with uncertainty in this area.

Alito’s central point is that before a newly implied right (abortion) can be constitutionally recognized as part of a person’s exercise of “liberty,” a painstaking historical inquiry must be made. The question which the court should properly ask in such a case is whether this newly claimed implied right, which is not explicitly mentioned in the Constitution, nevertheless deserves recognition because it is “deeply rooted in the Nation’s history and traditions?”

Alito reviews American legal history to answer that question, which he says the Casey court should have undertaken but did not. He finds that, “until the latter part of the twentieth century, such a right [to abortion] was unknown in American law.” When the 14th Amendment was adopted in 1868, which is the very amendment which contains the “liberty” language under consideration, “three quarters of the states [28 or 37 states] made abortion a crime at all stages of pregnancy.” This picture continued. “By the end of the 1950s … statutes in all but four states and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother.’” If anything was “deeply rooted in America’s history and traditions” it was that abortion was legally outlawed. That view of abortion continued until 1973 when Roe was decided. On the day of the Roe decision, 30 states still had anti-abortion statutes in effect banning, or at most, allowing an exception for danger to the life of the mother. The court’s justifiable conclusion in Dobbs was that abortion was not deeply rooted in the nation’s history and tradition.

Instead of a serious historical investigation, the Casey court chose to create a hybrid of privacy and liberty with the emphasis on “personal dignity and autonomy” and on the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of life.” Whatever those phrases might have meant, says Alito, they did not amount to an ordered constitutional liberty that “set limits and defines the boundary between competing interests.”

Alito then dealt with the doctrine of stare decisis, a Latin phrase that literally means “to stand with what has been decided.” It is the idea that longstanding rulings, in this case Roe and Casey, should not be overturned. The value of the doctrine is that it introduces a degree of integrity and certainty into the judicial process. However, as Alito’s opinion pointed out, stare decisis is “not an inexorable command.” Alito refers readers of the opinion to past decisions that have been revisited and overturned such as Brown v. Board of Education, which overturned Plessy v. Ferguson. Plessy had allowed states to maintain racial segregation in schools and other public places. Alito includes a long list of other reversals, showing that the court has been and should be able to reconsider an earlier ruling with which it now disagrees. It does so by considering a variety of factors.

The opinion reviewed those factors and concluded that the reasoning of both Roe and Casey was “egregiously wrong” and that the rules imposed “resembled the work of a legislature” rather than judicial reasoning from constitutional sources. Furthermore, almost from the start, and from decision to decision, the legal ground upon which the right to abortion was defended constantly changed. The legal tests (formulas) by which the high court and the lower courts tried to apply were ambiguous and evasive — such as the “trimester system,” “viability,” “undue burden.” Casey itself “generated a long list” of conflicts between various circuit courts, showing the unsettled nature of judicial reasoning. Therefore, allowing Roe and Casey to stand was not justified by using the court’s ordinary criteria.

Finally, Justice Alito’s majority opinion dealt with the claim that reversing these key decisions would destroy the court’s “legitimacy.” Alito’s opinion calls his colleagues back to the true legitimacy of constitutional rule. All that the justices can do is interpret the Constitution according to a judicial philosophy that is guided by the clear language of that document alone, and do so consistently across the cases they hear. Judges cannot be governed by various segments of public opinion or shifting cultural mores no matter how shrill their voices. They must resist the very real temptation to make the Constitution say what it does not.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.

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