The U.S. Supreme Court's Nullification Of The Constitutional Right To Abortion: Practical Considerations

• Published date: 28 June 2022
• Subject Matter: Government, Public Sector, Food, Drugs, Healthcare, Life Sciences, Constitutional & Administrative Law
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Marc R. Esterman, Joan W. Feldman, Kelly Smith Hathorn, Thomas B. Mooney, Peter J. Murphy, Damian J. Privitera, Jaime A. Welsh and Lisa M. Zana

Introduction

On June 24, 2022, the Supreme Court of the United States issued its decision in the case, Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization et al., 597 U.S. _____ (2022), which concluded that the United States Constitution does not confer a right to abortion. The decision has the effect of overruling the landmark cases, Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and, as a result, now leaves the issue of abortion to each individual state's rulemaking.

Background

By way of background, in Roe, the Supreme Court ruled that the constitutional right to privacy includes a woman's qualified right to terminate her pregnancy, thus establishing a nationwide constitutional right to abortion, and, in Casey, the Supreme Court partly reaffirmed Roe but replaced Roe's trimester structure with a fetal viability standard (24 weeks into pregnancy). Roe held that the abortion right is part of a right to privacy that springs from the First, Fifth, Ninth and Fourteenth Amendments, while Casey grounded its decision on the theory that the right to obtain an abortion is part of "liberty" protected by the Fourteenth Amendment's Due Process Clause. In re-affirming Roe's right to abortion, Casey relied in part on stare decisis, a cornerstone legal premise that requires courts to give weight to precedent when ruling on a similar case.

Mississippi Law Challenged

In Dobbs, the Supreme Court considered the constitutionality of Mississippi's Gestational Age Act, a 2018 law that bans abortions following the first 15 weeks of pregnancy, other than for medical emergencies or severe fetal abnormality, but with no exception for rape or incest. The Supreme Court ruled 6-3 to reverse the lower court rulings in Dobbs and 5-4 to overturn the Roe and Casey decisions, thus striking down the federal protection of abortion and leaving a woman's right to choose to each individual state's lawmaking.

Supreme Court's Majority Decision

The majority decision in Dobbs (authored by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett) found that abortion is neither explicitly protected by the Constitution, as abortion is not mentioned by the Constitution, nor implicitly protected by the Due Process Clause of the Fourteenth Amendment as a matter of right because any such right must be "deeply rooted in this Nation's history and tradition" and...