Something is missing from the US Supreme Court’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization in which the Court struck down the constitutional right to abortion first recognized nearly 50 years ago in Roe v. Wade.
Reading through the majority opinion, written by Samuel Alito, you can’t help noticing the absence of women.
You can find the full text of the Supreme Court’s decision here. If you’ve never read a Supreme Court decision before, they’re actually not that hard to understand. A few years ago I wrote a little primer on how to read them here.
At issue in Dobbs is a Mississippi law which bans almost all abortions after 15 weeks of pregnancy. Mississippi explicitly asked the Court to overturn Roe.
Alito conducts a lengthy analysis going all the way back to literally the 13th Century about whether the right to abortion is “deeply rooted in this Nation’s history and tradition.” There’s plenty of talk about fetal viability and whether that’s a reasonable point at which to restrict or ban abortion. There’s a detailed discussion about the proper role of stare decisis, the deference to legal precedent. And there are multiple references to the legitimate interest of the States in protecting what is variously called potential life, fetal life, prenatal life, the life of the unborn, and unborn human beings.
The majority’s view is essentially that the Court’s decision 50 years ago in Roe, holding that the right to abortion is constitutionally protected by the 14th Amendment was “egregiously wrong” and usurps the power of the States to legislate on abortion. Today’s Court must therefore correct that wrong by overturning Roe.
Yet in nearly 80 pages, Alito hardly mentions women at all. He does not consider the impact that overturning Roe will have on women: how it will reduce women’s personal autonomy and bodily integrity, how it will constrict the “ability of women to participate equally in the economic and social life of the Nation.”
He dismisses the reliance interests that women have enjoyed for the past 50 years, that is, their ability to organize their lives and their relationships knowing that abortion is an available option should they want or need one.
He does not attempt to balance the competing interests of women and the States, and he is contemptuous of the ways in which Roe and a related case, Planned Parenthood v, Casey, did so. He doesn’t even attempt to explain why he believes State interests should dominate so overwhelmingly in this case.
In a separate concurring opinion, Clarence Thomas states he would extend Alito’s legal arguments to “correct” the Court’s “demonstrably erroneous” decisions recognizing the right to obtain contraceptives, the right to engage in private consensual sexual relations, and the right to same-sex marriage. The Supreme Court’s conservative super-majority is just getting started folks.
In sharp contrast, the dissenting opinion written by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan centers women.
The dissent lists ways in which women will likely be harmed when States are free to legislate against abortion as many have done or are about to do. These include:
- States can ban and even criminalize abortion at any time after fertilization.
- They are not required to provide an exemption for pregnancy due to rape or incest, and many State laws already do not provide such an exemption.
- States can prohibit abortions even in cases where an abortion is medically necessary to protect the life of the mother.
- The financial burdens of pregnancy, delivery and parenting will fall disproportionately on poor women, and on women of color.
- Banning abortions is estimated to increase maternal mortality by 21%. White women face a 13% increase while Black women face a 33% increase.
- In fact, Black women are already three to four times more likely to die during or after childbirth than white women, often from preventable causes.
- “Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.” [Dissent, p. 3]
And in Mississippi specifically:
- Mississippi has the highest infant mortality rate in the country.
- 60% of Mississippi counties do not have even a single obstetrician-gynecologist.
- 19% of women of reproductive age in Mississippi have no health insurance.
- 62% of pregnancies in Mississippi are unplanned, but Mississippi does not require health insurance to cover contraceptives.
- The State prohibits educators from demonstrating proper contraceptive use.
- Mississippi does not require employers to provide paid parental leave, and its employment laws do not ban pregnancy discrimination.
- It is approximately 75 times more dangerous for a woman in the State to carry a pregnancy to term than to have an abortion.
- Mississippi rejected federal funding to provide a year’s worth of Medicaid coverage to women after giving birth even though 86% of pregnancy-related deaths in the State are due to postpartum complications.
All these facts point to the need to uphold Roe and Casey to enable women to make these “most intimate and personal choices” for themselves.
The dissenting justices point out another important way in which women are absent from the majority opinion. They note that the majority’s reasoning hinges on interpreting the 14th Amendment as it would have been understood by the people who ratified the Amendment back in 1868. (This approach to constitutional interpretation is known as “originalism.” It’s bullshit.) In their words, the majority’s view is:
“If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.” [Dissent, p. 14]
And who were those people? Who ratified the 14th Amendment in 1868?
Breyer, Sotomayor and Kagan continue:
“So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase ‘We the People.’” [Dissent, pp 14-15]
Neither the ratifiers of the 14th Amendment, nor the framers of the Constitution recognized women as equals. They did not recognize women’s rights at all. The majority’s insistence on interpreting the 14th Amendment as it would have been seen at the time of ratification “consigns women to second-class citizenship.”
And that, unfortunately, is where we are again today.
Dobbs v. Jackson Women’s Health Organization
Full text of the Supreme Court’s June 24, 2022 decision
Roe v. Wade
Full test of the Supreme Court’s Jan. 22, 1973 decision
Planned Parenthood of Southeastern Pennsylvania vs. Casey
Full text of the Supreme Court’s June 29, 1992 decision
The End of Roe v. Wade Explained
An in-depth explainer from Vox. June 24, 2022
The Single Best Guide I’ve Heard to the Supreme Court’s Rightward Shift
Interview with Kate Shaw, Professor of Law at Cardozo University and co-host of the Strict Scrutiny podcast, on the Ezra Klein Show. July 1, 2022