By James R. Jolin
POLITICO’s leak of Supreme Court Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that U.S. abortion rights are on the verge of a fundamental shift.
If the official decision, expected this month, hews closely to the draft, the constitutional right to abortion affirmed in Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and other seminal Supreme Court rulings will disappear.
This brief history of abortion rights and jurisprudence in the United States aims to clarify just what is at stake in this case.
The story of Constitutional abortion rights begins, most precisely, almost a decade prior to Roe ruling — and with the issue of contraception, not abortion. In 1965, the Court heard argument and decided on Griswold v. Connecticut. At issue in Griswold were two, centuries-old Connecticut statutes — one punishing “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception” and a second sanctioning any individual who “assists, abets, counsels, causes, hires or commands another” to seek an abortion.
In invalidating both Connecticut laws, the Court identified a central principle it would later apply in Roe: the right to privacy. No one Constitutional provision explicitly secures the right to privacy, but, writing for the majority, Justice William Douglas held that multiple guarantees together form “zones of privacy.” Pointing to the First Amendment’s protection of the right of association, the Third’s prohibition on quartering of soldiers, the Fourth’s proscription of unreasonable searches and seizures, and the Fifth’s self-incrimination clause, the Court reasoned the Constitution implicitly protects privacy, especially that of married couples during sex. The Connecticut statute, in the Court’s view, swept too broadly, not merely regulating the production of contraceptive devices, but their very use, and therefore invaded impermissibly on marital privacy.
Griswold’s right to privacy set the stage for the establishment of Constitutional abortion rights. In 1972, the Court heard arguments in Roe v. Wade, a lawsuit challenging Texas’s then-ban on all abortion procedures except “on medical advice for the purpose of saving the mother’s life.” Striking down the law, the Court merely extended Griswold’s protection of privacy to the decision for a birthing person to obtain an abortion. After surveying a litany of prior decisions finding the right to privacy applied to marriage, procreation, contraception, and child rearing, Justice Harry Blackmun concluded for the Court that the right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
At the same time, however, the Court identified two distinct interests — maternal health and the fetus’s potential life — that, in its view, grow in importance and become compelling reasons to restrict access to abortion during a pregnancy. To deal with both interests, the Court set out a controversial framework under which States could determine the legality of their abortion restrictions.
According to the Court, the start of the second trimester marks the point at which maternal health becomes compelling; that is, abortion becomes more dangerous than standard childbirth at this moment. Under this rule, States could not interfere in abortions during the first trimester but could effectuate regulations on the procedure in the second trimester, so long as the limitations were “reasonably related” to preserving maternal health.
The third trimester, by contrast, marked the point at which a State’s interest in the fetus’s potential of human life becomes compelling, per the Roe Court. This trimester represented a so-called “viability” line, indicating the moment at which “the fetus [] presumably has the capability of meaningful life outside the mother’s womb.” The Court offered little in the way of justification for why fetal viability makes a State’s interest compelling, but nonetheless held that, after this point, States could entirely prohibit abortions, assuming that it made exemptions for when an abortion is necessary to preserve maternal health.
In the universe of Supreme Court jurisprudence and its plethora of legal abstractions, Roe’s relatively precise trimester framework is surprising — but was nonetheless short-lived. Nineteen years after the Court handed down its Roe decision, Planned Parenthood v. Casey modified Roe and notably rejected its trimester framework and introduced a new “undue burden” standard. Notwithstanding this small departure, however, Casey largely affirmed Roe.
At issue in Casey were five provisions of a Pennsylvania statute placing limits on abortion procedures. The first required a woman seeking an abortion to furnish “informed consent” prior to the procedure and stipulated that “she be provided with certain information at least 24 hours before the abortion is performed.” The second commanded that a parent offer informed consent prior to a minor receiving an abortion. The third mandated that a married woman notify her husband of her intended abortion and provide evidence of such notification. The fourth defined “medical emergency” exemptions to the first three requirements. Finally, the fifth provision required that abortion-providing facilities comply with particular “reporting requirements.”
Prior to examining each provision, the Court conducted an exhaustive stare decisis analysis of Roe to determine its status as binding precedent. The majority opinion, jointly authored by three Justices, identified four standards for determining Roe’s precedential force: whether the decision remained practically workable, whether individuals had come to rely on the precedent, whether the principles of law had evolved since the ruling, and whether a change in the facts compelled an overruling.
Finding no evolution in law, facts, or workability, and acknowledging that individuals had forged their sexual activity around the notion of Constitutional abortion rights, the Court held that Roe remained good law — but only its three “essential holding[s].” In other words, the Casey Court only adhered to Roe’s determinations that a woman retained the right to an abortion prior to fetal viability without State interference, that States could restrict abortion after viability with exemptions for protecting maternal health, and that States possessed “legitimate interests” in protecting maternal health and potential human life. Even though it comprised a substantial proportion of Roe’s final decision, the Casey Court argued that Roe’s precise trimester framework was too little acknowledged and implemented to remain an essential component of its abortion jurisprudence.
In lieu of a trimester framework, Casey set forth an “undue burden” standard. Under this test, only those abortion restrictions that did not have “the purpose or effect of placing a substantial obstacle in the path of women seeking abortion of a nonviable fetus” were deemed valid. Applying this standard to Pennsylvania’s law, the Casey Court found only the spousal notification requirement to be impermissible. Relative to the other informed consent requirements that the Court adjudged as only attempts to persuade a woman against obtaining an abortion, while still preserving her right to choose, the spousal notification requirement would, in effect, prevent a “significant” number of women from obtaining an abortion, particularly for those victims of domestic abuse. Per the Court, Pennsylvania could fashion laws intending to show a “profound respect” for the unborn, including initiatives to persuade typical childbirth — but statutes that substantially restrict a women’s right to choose to terminate a pre-viability pregnancy were constitutionally invidious.
The story of contemporary U.S. abortion law does not end with Casey, however. Twenty four years later, Whole Woman’s Health v. Hellerstedt (2016) further clarified the “undue burden” standard and the Court’s role as an arbiter of disputes over the constitutionality of abortion restrictions. Under the Whole Woman’s Health ruling, Casey’s “undue burden” test remains the proper standard for determining the legality of an abortion restriction — but the process of evaluating such restrictions requires balancing the burdens the law imposes with the benefits it may confer. The Court’s evaluation is also more decisive under Whole Woman’s Health: the Court can resolve “questions of medical uncertainty,” rely on evidence presented in judicial proceedings, and need not show “uncritical deference” to the evidence upon which the legislature fashioned a particular abortion restriction. Applying this more critical, quasi-cost-benefit analysis, the Court found two Texas abortion statutes to be impermissibly burdensome. This standard was affirmed yet again four years later in June Medical Services LLC v. Russo (2020), when the Court rejected a law requiring doctors at abortion facilities to have admitting privileges at a hospital within 30 miles, which it found to be a near “word-for-word” duplicate of the law at issue in Whole Woman’s Health.
If the Dobbs leaked ruling becomes law, abortion jurisprudence in the U.S. is poised to shift yet again — but this time dramatically in the opposite direction. Principally, the leaked Dobbs ruling returns to the debate first addressed indirectly in Griswold and directly in Roe: the fundamental question of whether the Constitution protects a woman’s right to choose to terminate her pregnancy. The leaked ruling excoriates the current state of U.S. abortion rights; in it, Alito disclaims the Roe Court’s analysis of the right to privacy and instead favors an analysis into the nation’s history and tradition to determine abortion rights’ fundamentality. Following the Court’s Washington vs. Glucksberg precedent, Alito surveys early common law — or the law conceived by judicial precedent — and finds abortion is not sufficiently deeply rooted in the nation’s history and tradition to warrant being a fundamental right. For judicial conservatives like Alito, this lack of fundamentality renders contemporary abortion jurisprudence a form unjustified judicial policymaking. Alito’s solution, prudent or otherwise, is to return the question of abortion rights to state legislatures.
Even if Dobbs becomes law, the abortion legal debate will by no means conclude. The prospect of a federal abortion ban or a statute endowing fetuses with the full rights of personhood passing a Republican Congress and being signed into law by a future Republican president will no doubt protract abortion litigation. Furthermore, State-sanctioned restrictions on individuals traveling to other States for the purpose of seeking an abortion represent key issue for which even Roe, Casey, and Whole Woman’s Health do not have clear answers. Indeed, if past is prologue, the next half-century of abortion jurisprudence will be just as eventful as the last.
