On Friday 24th June the Supreme Court of the United States decided against the constitutional right to abortion. The Supreme Court had been considering a case, Dobbs v Jackson Women's Health Organization, that challenged Mississippi's ban on abortion after 15 weeks.
Five justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were clearly in favour of the decision, three justices disagreed with the majority - Stephen Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts wrote a separate opinion saying that, whilst he supported the Mississippi ban, he would not have gone further.
The judgement summary states that the Court found that “the constitution does not confer a right to abortion, Roe and Casey, the Court’s precedents that established the right to abortion since 1973, were overruled; and the authority to regulate abortion was returned to the people and their elected representatives.” As is the situation in Ireland since the repeal of the 8th amendment of the constitution, abortion is no longer a constitutional matter and will now be decided on a state-by-state basis by the elected government in each state.
According to the judgement summary the Court decided that the right to abortion was not rooted in the nation’s history and tradition and was not an essential part of the right to liberty stating that until a few years before Roe no federal or state court had recognised such a right and three quarters of States had made abortion a crime at any stage of pregnancy. The judgement says that attempts to justify abortion through appeals to a broader right of autonomy or right of personal privacy were not accepted. In relation to a constitutional “right of personal privacy” the court found that "Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference".
As to whether a right to obtain an abortion is part of a broader entrenched rights supported by other Court precedents the judgement states “What sharply distinguishes the abortion rights from the rights recognized and relied upon in Roe and Casey ( privacy, autonomy) is something that that both those decisions acknowledge: abortion is different because it destroys what Roe termed “a potential life” and what the law challenged in this case (State of Mississippi ban on abortion after 15 weeks) calls an “unborn human being”. None of the other (privacy or autonomy) decisions cited by Roe and Casey involved the critical moral questions posed by abortion. Accordingly, those cases do not support the right to obtain an abortion.” The Court also found that “as a result of Roe and Casey those on the losing side - those who sought to advance the State’s interest in foetal life could no longer seek to persuade their elected representatives to adopt polices consistent with their views. The Court short-circuited the democratic process by closing it to the large number of American’s who disagreed with Roe.”
The judgement continues, “An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. The arbitrary viability line which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem…is that viability has changed over time and heavily dependent on other factors such as medical advances and the availability of medical care, that have nothing to do with the characteristics of the foetus.”
The judgment considered that the Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights. “The Court emphasises that this decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubts on precedents that do not concern abortion.” However, Justice Clarence Thomas, in his opinion, wrote: "In future cases, we should reconsider all of this Court's substantive due process precedents, “suggesting that the protection of other rights, while not affected by this judgement, could be open to similar review of legal process and precedent in the future.
The judgement summary concludes stating that “abortion presents a profound moral question. The constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated (seized) that authority. The Court overrules those decisions and returns the authority to the people and their elected representatives.”