The Supreme Court Overturns Roe v. Wade and Planned Parenthood v. Casey
The response of abortion advocates to this decision exposes a profound and pervasive societal ignorance regarding the Supreme Court's role in our constitutional republic.
News & Commentary
On Friday, in Dobbs v. Jackson Women's Health Organization, the Supreme Court issued a landmark decision, overturning Roe v. Wade and Planned Parenthood v. Casey. In a 6-3 ruling, the Court upheld Mississippi's abortion ban after fifteen weeks. In a 5-4 ruling, the Court held that "the Constitution does not confer a right to abortion," returning the issue of abortion to the states. The majority opinion, written by Justice Samuel Alito, mirrored the Court's draft majority opinion, which was leaked to the public in May. Justices Thomas, Gorsuch, Kavanaugh, and Barrett joined Justice Alito in the majority. Chief Justice Roberts filed a concurrence, siding with the majority to uphold Mississippi's abortion ban after fifteen weeks. However, Roberts opposed the Court's decision to overturn Roe and Casey.
Following the Dobbs ruling, abortion bans immediately took effect in ten states. Utah, South Dakota, Texas, Missouri, Oklahoma, Arkansas, Louisiana, and Kentucky each had trigger laws that took effect after Roe was struck down. Abortion bans in Alabama and Ohio also took effect after federal courts lifted injunctions on each state's ban. We will see more abortion bans shortly. Bans in five other states with trigger laws, Idaho, Wyoming, North Dakota, Tennessee, and Mississippi, will take effect within the next thirty days. In total, twenty-six states supported overturning Roe and Casey. Presumably, each of those states will enact some form of an abortion ban if they have not already.
Writing for the Court, Justice Alito said,
"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. . . . Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives."
Justice Alito went on to condemn Roe, arguing that "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences."
The Supreme Court notably did not abandon the doctrine of substantive due process, which was integral to the Casey decision. The doctrine of substantive due process asserts that certain "deeply rooted" unenumerated rights are protected from government deprivation by the Due Process Clause of the Fifth and Fourteenth Amendments. Substantive due process is an intentional misreading of the Due Process Clause. It provides the Supreme Court a blank check to act as a super-legislature and enact policy. The actual intent of the Due Process Clause is to ensure that the government follows legal procedures which do not deprive citizens of "life, liberty, or property" without due process. The Supreme Court could have abandoned the doctrine of substantive due process in this case. However, it did not. Instead, the majority severed the issue of abortion from other purported "fundamental" substantive due process rights. The Court defended this position by arguing that abortion, prior to Roe, was "not deeply rooted in the Nation's history and traditions."
Chief Justice Roberts filed a concurrence, which was predictably spineless and unprincipled. He argued in favor of leaving "for another day whether to reject any right to an abortion at all." Roberts would have created an entirely new standard for abortions, stating that a woman's "right to choose to terminate her pregnancy . . . should . . . extend far enough to ensure a reasonable opportunity to choose, but need not exceed any further – certainly not all the way to viability." Justice Alito eviscerated Roberts' proposed "reasonable opportunity" standard, stating that "the concurrence would do exactly what it criticizes Roe for doing: pulling 'out of thin air' a test that '[n]o party or amicus asked the Court to adopt." Chief Justice Roberts is no better than the leftist jurists who legislate from the bench instead of issuing purely judicial interpretations.
Roe and Casey were two of the most egregious, unprincipled, and constitutionally incoherent decisions in the history of Supreme Court jurisprudence. The Court created a purported right to abortion out of whole cloth, despite no such right existing in the Constitution. In deciding Roe and Casey, leftist justices on the Supreme Court effectively altered the Constitution to fit their preferred policy prescription - legal abortion in all fifty states. Under the Constitution, federal courts are not permitted to make policy decisions. That is precisely the role of the legislature. The federal court's role is to interpret the meaning of laws and the Constitution. In Dobbs, the Supreme Court reigned in its prior overreach on abortion, correctly returning abortion policy decisions to the state legislatures.
The Supreme Court, in its decision, did not rule on the morality of abortion but rather the constitutionality of the Mississippi law and abortion broadly. Since the Court handed down its decision, abortion advocates have relentlessly made policy arguments for why the Supreme Court should have upheld Roe. While those policy arguments have a place in the public discourse when deciding abortion policy at the state level, they are wholly irrelevant to this case. The response of abortion advocates to this decision exposes a profound and pervasive societal ignorance regarding the Supreme Court's role in our constitutional republic.
After the Dobbs decision, many leftists are saying the quiet part out loud. They are vocally advocating for destroying our nation's institutions. Far-left abortion advocates want to abolish the Supreme Court and destroy the Constitution. For example, one abortion activist, in response to the Dobbs ruling, said, "Can someone remind me why we're following a rule book that was written 200 years ago that is no longer applicable to modern society?" The "two-hundred-year-old rulebook" she seeks to throw out is, of course, the United States Constitution. Her quote is indicative of a broader leftist view. Those on the left do not care about the individual rights protected in the Constitution. The Democrat's sole concern is to achieve their preferred policy prescriptions by any means necessary. They are perverting the Constitution, claiming it undoubtedly protects the right to abortion while simultaneously arguing that the Second Amendment does not protect the right to bear arms outside of one's home. They support weaponizing the courts by encouraging them to invade the legislature's constitutional authority to make policy. With conservative justices now making up the Supreme Court's majority, the left can no longer use the Court to obfuscate the Constitution's meaning to achieve its political goals. Therefore, the left has refocused its efforts on destroying the Constitution and the Supreme Court.
The Constitution is the most important document in American law. It protects American citizens' individual rights from the predations of the government by enshrining those rights in the document, dispersing the federal government's power across three separate branches, and acknowledging the importance of federalism. Those on the right, and those in the center, generally understand the importance of the Constitution. It sets our nation apart from every other country, where governments can invade the rights of its citizens at will. When the Supreme Court, in Roe, baselessly claimed that a right to abortion existed in the Constitution, conservatives and pro-life centrists fought for forty-nine years to overturn that decision. Conservatives never called for eliminating the Constitution. They fought the ruling within the bounds of the Constitution because the right recognizes that the Constitution is an objective good integral to the preservation of our nation. Furthermore, the right understood that Roe was entirely detached from the Constitution and would eventually be overturned if given an honest examination.
The left, on the other hand, is calling to dismantle the Constitution and the Court after the Dobbs ruling because, to them, the Constitution only exists to defend their preferred policy prescriptions. Leftists use the Court as a super-legislature to promulgate their preferred policies. This ultracrepidarianism of the Court has benefitted the left greatly for decades. Now that the Supreme Court has moved back within its purview, interpreting laws and the Constitution instead of making policy, the Constitution and the Court no longer serve the left's purpose. The left can no longer use the Court as a club to wield against conservatives, cramming down far-left policy diktats onto the nation. Inevitably, the left now views our institutions as roadblocks in pursuit of their leftist utopia, where abortions are available on-demand until birth. There is a pervasive belief on the left that the Constitution and Supreme Court need to be destroyed, proving that leftists value achieving their policy goals over preserving our institutions.
Garrett Gillespie graduated Magna Cum Laude from the University of Central Florida with a Bachelor of Arts degree in political science.
The Gillespie Report is a weekly news and conservative commentary column written by Garrett Gillespie. Subscribe to receive the newest edition each week for free.
Excellent article!
Indeed, many Democrats aim to achieve their desired policies by any means necessary. Their response to the overturning of Roe v. Wade reflects a lack of knowledge or respect for the Supreme Court's role in our constitutional republic.
Moreover, I am often dismayed over Chief Justice John Roberts' handling of affairs and believe he has been a disappointment to many conservatives.
Undoubtedly, the Constitution is the most important document in American law. Future generations - of all political persuasions - deserve a solid civic and history education.