In March 2018, the state of Mississippi passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases of rape or incest.
Republican Governor Phil Bryant said that he was:
“We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”
An abortion clinic named the Jackson Women’s Health Organization and one of its doctors filed a suit in Federal District Court the day the Gestational Age Act was enacted against various Mississippi officials, alleging that the Act violated Supreme Court precedents establishing a constitutional right to abortion. The District Court granted summary judgment in their favour and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and that 15 weeks’ gestational age is “prior to viability.”
Mississippi appealed against the Fifth Circuit to the Supreme Court in June 2020, challenging the viability standard set by previous Supreme Court decisions and asking the Court to allow the prohibition of “inhumane procedures”.
United States Constitution
The Fifth Amendment to the United States Constitution provides that:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Ninth Amendment to the United States Constitution provides that:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Section 1 of the Fourteenth Amendment to the United States Constitution provides that:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United 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.”
Stare decisis is a Latin phrase with the literal meaning of “to stand in the things that have been decided”. It reflects the tendency of Courts to observe principles or rules established in previous legal cases that are either binding or persuasive.
In Hertz v. Woodman, 218 U.S. 205, 212 (1910), it was held that whether a precedent should be overruled is a question “entirely within the discretion of the court.”
In Payne v. Tennessee, 501 U.S. 808, 828 (1991) it was said stare decisis is a “principle of policy”.
Roe v. Wade (1973)
In Roe v. Wade, 410 U.S. 113 (1973), the US Supreme Court majority opinion in striking down Texas’s abortion ban as unconstitutional held that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”
“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”
Roe v. Wade decided that a state’s right to regulate abortion was limited according to which trimester of pregnancy:
“With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”
“To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Planned Parenthood v. Casey (1992)
The subsequent case of Planned Parenthood v. Casey, 505 U.S. 833 (1992) resulted in a particularly divided Court.
The plurality’s opinion overturned the Roe trimester framework in favor of a viability analysis allowing states to implement abortion restrictions that apply during the first trimester of pregnancy, and the Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard.
However, the plurality emphasised that stare decisis had to apply because the Roe rule had not been proven intolerable:
“The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.”
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Justices Blackmun and Stevens approved of the plurality’s preservation of Roe. Justice Blackmun, the author of Roe, argued for a woman’s right to privacy and again insisted that all non-de-minimis abortion regulations were subject to strict scrutiny.
Justices Rehnquist and Scalia dissented from the plurality’s decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided.
The Gestational Age Act
Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018) provides that:
“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.” §4(b).
Justice Alito held that the divisive issue of abortion properly belongs and should be given back to the people:
“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.””
“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 deepened 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.”
Justice Kavanaugh, concurring, wrote a very balanced and fair opinion that included the following respectful and temperate remarks:
“Abortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life. The interests on both sides of the abortion issue are extraordinarily weighty.
On the one side, many pro-choice advocates forcefully argue that the ability to obtain an abortion is critically important for women’s personal and professional lives, and for women’s health. They contend that the widespread availability of abortion has been essential for women to advance in society and to achieve greater equality over the last 50 years. And they maintain that women must have the freedom to choose for themselves whether to have an abortion.
On the other side, many pro-life advocates forcefully argue that a fetus is a human life. They contend that all human life should be protected as a matter of human dignity and fundamental morality. And they stress that a significant percentage of Americans with pro-life views are women.
When it comes to abortion, one interest must prevail over the other at any given point in a pregnancy. Many Americans of good faith would prioritize the interests of the pregnant woman. Many other Americans of good faith instead would prioritize the interests in protecting fetal life—at least unless, for example, an abortion is necessary to save the life of the mother. Of course, many Americans are conflicted or have nuanced views that may vary depending on the particular time in pregnancy, or the particular circumstances of a pregnancy.
The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion…”
On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”
Justice Thomas, also concurring, quoted his previous comments and emphasised the difference between due process and substantive rights:
“As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of Thomas, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (Thomas, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U.S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
Justice Breyer, Justice Sotomayor, and Justice Kagan, dissenting, lamented that the Court had swept away the balance struck by Roe and Casey, and held that:
“Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions…”
“The reasons for retaining Roe and Casey gain further strength from the overwhelming reliance interests those decisions have created. The Court adheres to precedent not just for institutional reasons, but because it recognizes that stability in the law is “an essential thread in the mantle of protection that the law affords the individual.” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 154 (1981) (Stevens, J., concurring). So when overruling precedent “would dislodge [individuals’] settled rights and expectations,” stare decisis has “added force.” Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991). Casey understood that to deny individuals’ reliance on Roe was to “refuse to face the fact[s].” 505 U. S., at 856. Today the majority refuses to face the facts. “The most striking feature of the [majority] is the absence of any serious discussion” of how its ruling will affect women. Ante, at 37. By characterizing Casey’s reliance arguments as “generalized assertions about the national psyche,” ante, at 64, it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.”…
“More broadly, the majority’s approach to reliance cannot be reconciled with our Nation’s understanding of constitutional rights. The majority’s insistence on a “concrete,” economic showing would preclude a finding of reliance on a wide variety of decisions recognizing constitutional rights—such as the right to express opinions, or choose whom to marry, or decide how to educate children. The Court, on the majority’s logic, could transfer those choices to the State without having to consider a person’s settled understanding that the law makes them hers. That must be wrong. All those rights, like the right to obtain an abortion, profoundly affect and, indeed, anchor individual lives. To recognize that people have relied on these rights is not to dabble in abstractions, but to acknowledge some of the most “concrete” and familiar aspects of human life and liberty. Ante, at 64.”
Contrary to some of the political rhetoric and popular misconceptions, this is not an “extreme right wing decision”, nor one that abolishes abortion in America. The Supreme Court of the United States has merely decided that the United States Constitution is silent on abortion, and therefore is neutral with respect to this divisive issue. Roe v Wade simply read meanings into the Constitution that were not to be found. As Justice Alito pointed out, Roe v Wade “held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned”. It was a decision that was legally incorrect.
The effect of the decision in Dobbs v. Jackson Women’s Health Organization is that the political issue of abortion in the United States will again be left to the people, via their elective state representatives rather than having unelected Judges determine what rights should be granted, or what Constitutional limits should be placed on the regulation or restriction of abortion. This decision leaves the United States in the same position in Australia, where state governments, not Judges, determine the relevant laws. Like other contentious political issues, abortion laws will now be decided by state politicians and voters via normal democratic processes.