Roe Overturned

Always searching for the real thing
Living like it's far away
Just leave all the madness in yesterday
You're holding the key
When you believe it
--Michael McDonald

Yesterday the United States Supreme Court, in the case of Dobbs v Jackson Women's Health Org, overturned the controversial 1973 high court opinion of Roe v Wade--that abortion was a constitutional right. The 6-3 decision was split along party lines, although, as usual, the political animal Chief Justice John Roberts, while concurring in judgment, argued for a compromise that would have prohibited a clean break from Roe.

Dobbs is a worthy read. The institutional challenge facing the court was how to reverse a longstanding albeit controversial and politically charged precedent. The solution, of course, is to stick to the law--something that the Roe court failed to do. 

The primary opinion authored by Justice Alito and supplemented by Justices Thomas and Kavanaugh demonstrates how to go about righting a past judicial wrong. The court first reviews the standards by which 'liberty' as referenced in the Fourteenth Amendment protects particular rights. The central conclusion of this analysis is that the Constitution makes no express reference to the right to obtain an abortion. 

Next, the court considers whether abortion can be construed as an essential component of 'ordered liberty' as reflected by its grounding in the nation's history. The judicial term commonly associated with this analysis is 'substantive due process.' A review of pre-American common law as well as American law all the way up to Roe clearly does not protect a right to abortion. In fact, the law generally specified abortion as a criminal act--often on the level of a felony or manslaughter.

Finally, the court considers the stare decisis issues associated with overturning a legal precedent--particularly a big one like Roe. The court applies several tests: the nature of the previous error, the quality of reasoning, the workability of rules resulting from the previous judgment, effects on other areas of the law, and interests that relied upon the previous decision. It also considered the dissent's claim that overturning Roe would create considerable political consequences and damage the court's legitimacy (Chief Justice Roberts seems particularly sensitive to these types of arguments). The central conclusion: stare decisis does not prevent righting wrongs, no matter how controversial the reversal might be.

In overturning Roe, the court does not make abortion illegal. Instead, it returns the decision to the various states. There, the citizens and their elected representatives must decide to what extent abortion should be permitted, regulated, or prohibited.

As Justice Thomas suggested in his concurring opinion, Dobbs might serve as a template for re-considering other previous high court decisions of questionable legal quality.