Opinion: Abortion law: Roe vs Wade and the US constitution | FT
Law and policy commentator David Allen Green looks at how the US Supreme Court introduced a constitutional right to an abortion with Roe vs Wade and then removed that constitutional right with Dobbs. Written and narrated by David Allen Green, produced by Tom Hannen. More From Ft
On 23rd of June, 2022 there had been a constitutional right
to an abortion in the United States for about 50 years.
But the day after, on the 24th of June there was not.
An established constitutional right disappeared.
The constitutional right to an abortion
was removed by the Supreme Court of the United States.
This video is an account of how this happened
from the perspective of an English lawyer and commentator
with an interest in liberal constitutionalism.
What is a constitutional right?
A constitutional right is more than a mere legal right.
It is a right which is protected because
of how a political and legal system is well, constituted.
The key is in the word constitution.
If you have a constitutional right,
then there are limits to what the government and law
makers can do to you, not only in their actions,
but also in their passing of laws.
You can go to a court and say, the government cannot do that
action or those laws should be quashed.
And the court should enforce your rights,
not because of some abstract theory,
but because those rights are fundamentally part of how
your society is constituted.
They are legally recognised and enforceable rights,
but of the very deepest nature.
Where a country has a codified constitution,
constitutional rights will often be set out expressly
in a key constitutional text.
In the United States of America, many constitutional rights
are set out in the Bill of Rights,
the name given to the first 10 amendments to the Constitution.
And when there is a codified constitution, one obvious way
of creating and indeed removing rights
is by amending the text of the constitution,
you put the right in and/or you take the right out.
But constitutional rights are sometimes not
spelled out explicitly in the text
of a codified constitution.
They are instead inferred from the constitution by courts.
The constitutional right to an abortion
is not expressly set out in the Constitution of the United
States of America.
Yet in 1973, the Supreme Court of the United States
held there was a constitutional right to an abortion This was
in the case of Roe versus Wade.
The majority of the court held in that case that
state criminal abortion laws like those involved here that’s
except from criminality only a life saving procedure
on the mother’s behalf without regard to the stage
of her pregnancy and the other interests
involved violate the due process clause of the 14th Amendment,
which protects against state action
the right to privacy, including a woman’s qualified right
to terminate her pregnancy.
This was despite the court admitting
that the Constitution does not explicitly
mention any right of privacy.
However, in a line of decisions, the court has recognised that
a right of personal privacy or a guarantee of certain areas
or zones of privacy does exist under the Constitution.
Reviewing previous Supreme Court cases,
the court added, the right has some extension
to activities relating to marriage, procreation,
contraception, family relationships, and child
This right of privacy, whether it
be founded in the concept of personal liberty
and restrictions upon state action or the reservation
of rights to the people is broad enough
to encompass a woman’s decision whether
or not to terminate her pregnancy.
The detriment that the state would
impose upon the pregnant woman by denying this choice
altogether is apparent.
Specific and direct harm, medically diagnosable,
even in early pregnancy may be involved.
Maternity or additional offspring
may force upon the woman a distressful life and future.
Psychological harm may be imminent.
All these are factors that woman and her responsible physician
necessarily will consider in consultation.
And this is how the majority of the Supreme Court in 1973
set out that there was a constitutional right not
only to privacy in general but for a woman to have
an abortion in particular.
As there was not a general right to privacy explicitly set out
in the Constitution, the court had
regard to how the Bill of Rights protected privacy
in specific instances.
The First Amendment, the Fourth and Fifth Amendments,
in the penumbras of the Bill of Rights,
in the concept of liberty guaranteed by the first section
of the 14th Amendment.
And so by relying on previous Supreme Court decisions
that had protected privacy rights
and having regard to how the Constitution valued privacy
generally, the court posited that there
was both a constitutional right to privacy in general
and a constitutional right for a woman
to decide whether or not to terminate her pregnancy.
This was not a unanimous decision of that court.
And even though the Supreme Court in Casey
affirmed this decision in 1992, both the general constitutional
right to privacy and the specific constitutional right
to an abortion, have continued to be contested
by lawyers and politicians.
It has never become an undisputed constitutional
Indeed those opposed to abortion rights in the United States
have campaigned for the election of national politicians
that would nominate and confirm Supreme Court justices that
would take a different view to that’s
set out in Roe versus Wade.
The election of Donald Trump as president
together with a Republican majority in the Senate
meant that those opposed to the constitutional right
to abortion had the opportunity to overturn Roe versus Wade.
In particular the retirement of Anthony Kennedy and the death
of Ruth Bader Ginsburg meant that the composition
of the court shifted from what many regarded as a balance
of those in favour of abortion as a fundamental right to what
many now regard as a firm majority against there being
such a right.
And this newly constituted Supreme Court chose
to hear the case of Dobbs.
The Dobbs case was about a Mississippi law
which 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 15 weeks.
So strictly speaking, this case was not
about the general right to an abortion.
Indeed the Chief Justice of the Supreme Court, John Roberts,
said there was no need to decide in this case
whether there was a constitutional right
to an abortion.
“Our abortion precedents described the right to tissue
as a woman’s right to choose to terminate her pregnancy.
That right should therefore extend far enough
to ensure a reasonable opportunity to choose,
but need not extend any further.
Mississippi’s law allows a woman three months
to obtain an abortion, well beyond the point at which it
is considered late to discover a pregnancy.”
Roberts would not have decided anything more for him
a question before the Supreme Court did not require
anything more to be decided.
“That is all I would say out of adherence
to a simple yet fundamental principle
of judicial restraint.
If it is not necessary to decide more to dispose of the case,
then it is necessary not to decide more.
Surely we should adhere closely to the principles
of judicial restraint here.
We have a broader path for court chooses entails repudiating
a constitutional right we have not only previously recognised,
but also expressly reaffirmed.
The Court’s dramatic and consequential ruling
is unnecessary to decide the case before us.”
But five other justices of the Supreme Court
Those five justices were willing to take
that dramatic and consequential step.
And so a case about a Mississippi law
that actually permitted early abortions
became the basis for removing the constitutional right
to an abortion altogether.
The majority opinion was set out by Samuel Alito.
The Constitution does not confer a right to abortion;
Roe and Casey are overruled; and the authority
to regulate abortion is returned to the people and their elected
The Constitution makes no express reference
to a right to obtain an abortion and such a right
could not be implied into the Constitution
as the right to abortion is not deeply rooted in the nation’s
history and tradition.”
Other cases where the Supreme Court
had found there to be a constitutional right to privacy
could be distinguished.
The court considered whether a right to obtain an abortion
is part of a broader entrenched right
that is supported by other precedents.
The court concluded that the right to obtain an abortion
cannot be justified as a component of such a right.
Attempts to justify abortion through appeals to a broader
right to autonomy and to define one’s concept of existence
proved too much.
Those criteria at a high level of generality
could license fundamental rights to illicit drug use,
prostitution, and the like.
What sharply distinguishes the abortion right from the rights
recognised in the cases on which Roe and Casey rely is something
that both those decisions acknowledged.
Abortion is different because it destroys
what Roe termed potential life and what
the law challenged in this case cause an unborn human being.
None of the other decisions cited by Roe and Casey
involved the critical moral question posed by abortion.
This was to be a case where the force of precedent
could be set aside.
Roe versus Wade was wrong and on a collision course
with the Constitution from the day it was decided.
The court also said that Roe versus Wade was
poorly reasoned and unworkable.
It’s even stated that insufficient reliance had
been placed on Roe versus Wade despite the judgement being
50 years old.
On this elaborate and ambitious basis,
the majority of the Supreme Court
held that it was not bound by either Roe versus Wade
Yet notwithstanding this complex and wide-ranging legal
reasoning, the majority sought to insist
that this judgement was only about the right to an abortion.
“The court emphasises that this decision
concerns the constitutional right
to abortion and no other right.
Nothing in this opinion should be
understood to cast doubt on precedents
that do not concern abortion.”
But it is difficult to see how this can be correct.
Because the court went further than what Chief Justice Roberts
said was necessary to decide this particular case,
then the approach of the court in this case
may have implications in respect of where previous courts have
found there to be constitutional rights to privacy
on the basis of so-called substantive due process.
The notion that there are certain fundamental rights
which cannot be violated even if they are not expressly stated
in the text of the Constitution.
This eventuality is candidly stated by Clarence Thomas.
In his concurring opinion, he says, “in future cases
we should reconsider all of this court’s substantive due process
precedents including Griswold, Lawrence, and Obergefell.
These are the rights of married persons
to obtain contraceptives to engage
in private consensual sexual acts and to same sex marriage.
As for three remaining liberal judges
dissented from Alito’s opinion, this
means that the court can be seen as having
gone in four directions, the three liberal justices who
opposed the judgement, the Chief Justice who believed
the court had gone too far in this case, the four
justices that maintained that this judgement does not
necessarily mean that the court should look at other privacy
cases and the Justice who expressly
says that the court should indeed look at other privacy
Because of this four way split and because of the way
the majority approached this case, the decision of Dobbs
may mean that other privacy cases will be
litigated to the Supreme Court.
If so this means that other rights that the Supreme
Court have held to be constitutional rights
may now be open to being challenged.
Had the majority adopted Roberts more restrained approach,
this would not be the situation.
But they chose a more expansive, almost activistic approach.
And so even if they insist that there will not be implications,
there may well be consequences.
And these potential consequences are in addition
to the one inarguable legal fact of this judgement.
There is now no longer a constitutional right
to an abortion in the United States of America.
And this is likely to stay the situation
for some time for two reasons.
First, the entrenched power that the codified Constitution
of the United States gives to less popular states
where many are opposed to abortion
means that it is highly unlikely that the text
of the Constitution can be expressly amended
so to put the constitutional right to an abortion
And second, the current composition
of the Supreme Court also makes it unlikely
that the constitutional right to an abortion
will be reinstated by a differently constituted court
in the short to medium-term regardless of the results
of upcoming national elections.
This means that the political struggle for the right
to choose to terminate a pregnancy
will be for the foreseeable future
on a state-by-state basis.
The legal battle has therefore not ended.
But it is switching location, at least
in the short to medium-term, from the United States
Constitution and the Supreme Court to the constitutions,
legislatures, and courts of individual states.
Decisions about abortion will be made by state legislatures
and court houses rather than by the women concerned exercising
a constitutional right in consultation
with their doctors, at least until and unless the right
to abortion is somehow made again a constitutional right.
From a liberal perspective this shows
that liberal gains are not part of some inexorable march
towards progress, but they need to be fought and refought
So this is how the constitutional right
to an abortion was created and then removed.
It was not by amendment and then repeal
of any constitutional text, but instead what
one court held to be a constitutional right
was held by another court not to be a constitutional right.
What one court gave, another court removed.
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What People Say About It –
If the Supreme Court had merely left Dodd’s stand instead of over turning Roe vs Wade, then that would have made Mississippi law equal to most European laws, which also do not recognize a universal right to unlimited abortion. Nations such as France and Germany also are more pro choice leaning in the first trimester, and a greatly restrictive past that points. Roe Vs Wade was always a bad ruling in its legal precedent. Even Justice Ginsberg in her writings expressed that sentiment. The key is that in the eyes of approximately half the country’s eyes, abortion is not just about a woman’s right but also about the right of the unborn. That creates a far more complex situation legally and morally.
You might point out that many states have a referendum process, such that after the collection of the requisite number of signatures, a law or in some cases an amendment to the state constitution can be placed on the ballot directly to be voted on by the people. So no, this issue is not only be to decided by state legislators and courts, but by the people directly, at least in the states that allow it.
An actual constitutional right cannot be “created” as the video repeatedly claims.
When trying to establish a constitutional right that is not specifically laid out in the documents, the reasoning is based on either inference, or it being a product of some other codified right. It can also look to historical precedents outside the court – rights cannot be arbitrarily abolished either. So something that had been established through long practice can be potentially argued to be a constitutional right based on that in some cases.
When Roe was decided, the basis simply wasn’t there. There was no history of abortion being legally recognized. And the arguments in favour, including those ignoring the humanity of the unborn child, were weak – and as acknowledged even by pro-abortion legal scholars – based on dubious reasoning.
Hence it being overturned.
There’s still no federal law barring abortion at any stage, and from some perspectives I’ve listened to, any attempt to put in place a law going in either direction at the federal level could run afoul of the constitution.
Instead, it will go to the states, where it was in 1973, and properly belongs.
And it is ironic that the vast majority of Americans would consider entirely reasonable the law that was challenged by hardline pro-abortion activists – which opened the door to the overturning of Roe.