I strongly suspect that most people and organizations that have condemned the recent Supreme Court decision that overruled Roe v. Wade, and held that the U.S. Constitution does not confer a right to abortion do not know the name of the case that brought about that decision or the issue that brought it before the Court. I suspect that those who have applauded the decision don’t either. And while the name of the case (Dobbs v. Jackson Women’s Health Organization) isn’t important, the issue is.
The issue in Dobbs was the line that was drawn in Mississippi after which most abortions could not legally be performed. The Court, however, did not really address that line, but rather addressed the issue of who should draw the lines. It is on that issue that I believe the Court was right.
Every view on the permissibility of abortion involves the drawing of lines. Some of the lines are lines of time. Others are lines of circumstances. But all are lines. And the ultimate question is not what the lines should be, but rather who should draw the lines?
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An abortion can occur only after conception and prior to birth. Those two events mark the outer limits of the time lines. The Catholic Church, in opposing abortion draws the line at conception. Abortion prior to conception is not possible and following conception the Catholic Church says it is not permitted. For many others abortion should be permissible at any time prior to birth. As the Court stated in its first paragraph in Dobbs, “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.”
The Court in Roe, which legalized abortion nationwide, drew lines regarding the authority of states to regulate abortion. The justices who comprised the majority divided the nine months of pregnancy into three trimesters. During the first trimester, the pregnant woman was given the right to abort her pregnancy free from the interference of the state. During the second trimester the state was permitted to exercise some regulatory authority, but could not outlaw abortions. During the third trimester, however, the state was permitted to outlaw some abortions in the interest of the potential life that an abortion would extinguish.
Less than twenty years later, the Court, in Planned Parenthood v. Casey, threw out those three trimester lines, and substituted a new rule “under which States were forbidden to adopt any regulation that imposed an ‘undue burden’ on a woman’s right to have an abortion” prior to viability. However, “the decision provided no clear guidance about the difference between a ‘due’ and an ‘undue’ burden” or who would make that decision.
Casey did not, however, provide the final word on abortion. As the Court noted in Dobbs, “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly.” Some states enacted laws allowing abortion at all stages of pregnancy with very few exceptions. Others have sought to restrict abortion at various stages prior to viability.
Non-time-delineated lines allowing or prohibiting abortions include the life and health (both physical and mental) of the woman, pregnancy as a result of rape or incest, suspected birth defects, sex selection, and mere inconvenience of the woman. Other requirements that some states have imposed are waiting periods, doctor consultations, information, abortion provider qualifications, and physical building specifications.
Since there are nine justices, decisions can be made by only five of them. Allowing a decision to be made by a very small number of decision makers can be efficient. But 5-4 decisions also illustrates how a single person is really controlling the outcome.
What Dobbs has accomplished is not the drawing of the lines to be followed, but establishing who gets to draw the lines. In Roe seven men drew the lines. Granted those seven men were Supreme Court justices, but being confirmed as justices of the Supreme Court does not endow them with any superior intellect. They do not, upon donning their robes, become gods of some kind. They are just human beings who have been selected to perform the task of deciding the cases that come before them. Since there are nine justices, decisions can be made by only five of them. Allowing a decision to be made by a very small number of decision makers can be efficient. But 5-4 decisions also illustrates how a single person is really controlling the outcome.
The decision in Roe created a right that was not delineated in the Constitution. It was more akin to amending the Constitution than it was resolving a legal dispute. Amending the US Constitution is even more involved than enacting a federal law. Both of those involve extensive debate and public input.
Unless the Constitution prohibits any regulation of abortion, (a view that even Roe rejected), and as the Court noted in Dobbs a great many “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,” someone must decide what those restrictions should be. That is a task for a legislature, not a court. By overturning Roe, Dobbs assigns that task to the state legislatures where the people of each state can decide the law under which they live.
To those who disagree, I ask: if not the state legislatures, who should have the authority to draw the lines, and why them?
Howard Lurie is Emeritus Professor of Law at the Charles Widger School of Law at Villanova University.