Legal Docket - A legal pro-life victory

MARY REICHARD, HOST: It’s Monday morning and it’s a new day for The World and Everything in It. Today is the 27th of June, 2022.

Very good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

It’s time for Legal Docket.

The U.S. Supreme Court handed down the landmark ruling on Friday that we’d been waiting for: Dobbs v Jackson Womens’ Health, the official opinion, one that closely mirrored the draft opinion leaked in May.

By now you know the bottom line: Both Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey are dead!

REICHARD: To be clear: abortion in America is not dead. It’s now up to the individual states to regulate or ban abortion. Several states have already instituted greater protections for unborn babies.

Other states have done the opposite. They’ve put the interests of women seeking to end the life of the unborn first and foremost.

But remember Dobbs, and you will eventually. It will become as memorable as Roe and Casey have been.

I spoke to the director of a pregnancy care center in the nation’s capital about what Dobbs means for her.

Here’s Janet Durig of Capitol Hill Pregnancy Center:

DURIG: With abortion, with this being overturned? Nothing, because DC has very liberal abortion laws. And that doesn't change anything. As everyone's been saying on the news shows today this does not do away with abortion, it simply puts it back in the states. And in my case, it puts it back to the city of DC which  has abortion and actually in its abortion law, you get a teenager can go have an abortion with without parental consent. So that none of that changes.

EICHER: Justice Samuel Alito wrote the 79-page majority opinion.

Four other justices joined him: Justices Clarence Thomas and the three newest to the court, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. President George W. Bush appointed Alito, President George H.W. Bush appointed Thomas, and President Donald Trump appointed Gorsuch, Kavanaugh, and Barrett.

So the decision was 5-4 to bring Roe and Casey to an end.

REICHARD: Recall what those decisions did: Roe legalized abortion across the country in 1973. It held states can’t ban abortion prior to the time when a child is able to live outside the womb, the point of viability, a contentious drawing of lines.

Roe created even more complicated lines by dividing a pregnancy into three trimesters and spelling out three different legal standards.

Casey re-affirmed Roe in 1992, but dropped the trimester scheme and added a new standard: courts had to determine whether a state’s abortion law created an “undue burden” for a woman seeking to abort before her baby is viable.

EICHER: And here’s where some of the reporting you’ve heard or seen has been inaccurate. On the question of overturning Roe, the vote was 5-4. Chief Justice John Roberts did not join that majority.

On another question, he did. That was the question upon which the court agreed to hear the case: whether Mississippi’s ban on abortion after 15 weeks’ gestation is constitutional. Six justices upheld that state law, including the Chief Justice.

He wrote separately in a concurrence that reads more like a dissent in some ways.

REICHARD: Regardless, it’s a comprehensive majority opinion, replete with history and explanations of how the law works. Most of it lays out why Roe and Casey were wrong as a matter of law.

So let’s get into the details of the opinion and the dissent.

Much of the difference between the two has to do with a fundamental worldview, the language each side uses.

For example, what Roe called “fetal life,” Mississippi law calls “unborn human being.”

That has everything to do with where each side places the emphasis.

EICHER: The opinion begins with acknowledgement of what we all know: that Americans don’t agree on abortion or how to balance the rights of women with the rights of the unborn, or even whether unborn human beings ought to have any rights at all, at any point.

Given that intractable conflict, the opinion says the Supreme Court is not the place to resolve it. The court reads and interprets the Constitution. The court is not a legislature.

Therefore resolution must rest with the people and their closest elected representatives in their respective states.

REICHARD: That concept isn’t new. One case mentioned in the opinion is Washington v Glucksberg, decided in 1997. The question there was whether assisted suicide is a right under the Constitution. A unanimous court said “no.”

Listen to then-Chief Justice William Rehnquist announcing part of that opinion:

REHNQUIST: Out of respect for the democratic process and to prevent judges from over-reaching in this often difficult area, we have repeatedly emphasized that fundamental rights are those that are deeply rooted in our nation’s traditions. Thus, the issue before us today is not the broad question of whether there’s a constitutional right to determine the time and manner of one’s death but instead whether the liberty protected by the Due Process Clause includes a right to commit physician-assisted suicide.

And with that, the matter of assisted suicide went to the states. At the moment, the practice is legal in 10 states and the District of Columbia.

Dobbs is similar in that way. Because the first question that needs an answer is this: does the Constitution explicitly state a right to abortion?

The answer to that is no. Obviously no, as both sides are agreed on the point.

That neither Roe nor Casey started with that question is proof of poor reasoning, and it’s a point upon which even pro-choice constitutional scholars agree.

REICHARD: Casey brought in another legal error when it affirmed Roe’s central holding on the basis of stare decisis, a doctrine that means to stick with prior decisions.

But analysis of stare decisis hinges on five factors that the Casey court also didn’t think through. And as Justice Alito wrote, that doctrine is not a straitjacket. When a decision is terrible, it’s best to correct it. Just like the court did in overturning a ruling that upheld segregated schools for black and white children.

EICHER: So if abortion isn’t an explicit right in the Constitution, the next question is whether it is an implicit right.

Those are rights not mentioned specifically, but recognized by the court because they are deeply rooted in American history.

The Dobbs opinion goes into that history. One major point is that abortion was a crime in most states around the time of the ratification of the 14th Amendment. That was 18-68. One of the things the 14th Amendment did was to extend to the states the right of Due Process and Equal Protection, both of those found in the Fifth Amendment, which applies to the federal government.

And “Due Process” was where Roe v. Wade found abortion to be an implicit right.

REICHARD: In other words, no “deep history” to it, really at all.

And here I’ll insert the dissenting justice’s rejoinder to that: we cannot remain stuck in the 1800s when men ratified the Due Process Clause. Men weren’t attuned to female liberty because then they didn’t see women as equals.

The dissent says, times have changed, and now the majority “consigns women to second-class citizenship.”

EICHER: Still, it’s a tough argument to say abortion is part of the American tradition, when more than half of the states to this day don’t want it.

The dissent says it’s not about states, but about individuals; specifically, pregnant women who don’t wish to be pregnant. That one in four American women have had an abortion underscored the abortion industry’s key contention during oral argument in the Dobbs case: that sticking to precedent and affirming women’s reliance on abortion is paramount.

During oral argument, its lawyer Julie Rikelman pounded on that:

RIKELMAN: Mississippi's ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks the Court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will.

REICHARD: One aspect of Casey the Dobbs opinion lingered upon was Casey’s famous definition of “liberty” to mean the right to define one’s own concept of existence, meaning, the universe, and the mystery of human life.

Justice Alito wrote this in response: “While individuals are certainly free to think and to say what they wish about [these things] … they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.” “Ordered liberty sets limits and defines the boundary between competing interests.”

EICHER: Without ordered liberty, anyone’s idea about anything would be a fundamental right—and the opinion gave as examples, illicit drug use and prostitution.

Justices Brett Kavanaugh and Clarence Thomas wrote separate concurrences. Kavanaugh’s stated again what he said during oral argument:

KAVANAUGH: The Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process.

REICHARD: Justice Thomas also wrote a concurring opinion that is the source of alarmist headlines.

He has long taken issue with the modern Supreme Court concept known as “substantive due process.” He rejects it—legally and logically—because the words aren’t meant to go together. Due process is its own thing, a procedure. Substantive refers to rights that exist for their own sake. Thomas thinks that by putting the two together, the courts have taken for themselves entirely too much power.

And because prior court decisions have relied on substantive due process in their analyses, Thomas indicated he’d like to revisit, for example, the same-sex marriage decision and the decision that struck down laws on contraceptive use.

EICHER: Whatever you think about that, none of the other justices signed on with Justice Thomas’s concurrence. The majority opinion takes pains to specify that it is limited to abortion. Quoting from page 66: “[W]e emphasize that our 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.”

REICHARD: We turn now to more of what dissenting justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan had to say.

During oral argument, Justice Sotomayor made this comment about Mississippi’s abortion laws:

SOTOMAYOR: The Senate sponsors said we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

“Political acts.” That accusation pervaded the dissenting opinion. On page 57, the dissent shoots an arrow directly at the majority: “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this Court.”

EICHER: The dissenters say they do care about the state’s interest in the lives of the unborn, but that the majority goes too far and erases the interests of pregnant women altogether.

They use the term “forced childbirth.” They say women’s rights to equality and freedom are in peril. They say, as Justice Breyer said during oral argument, what’s also in peril is the legitimacy of the institution:

BREYER: To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court's legitimacy beyond any serious question.

REICHARD: The dissent talks at length about the hardships of motherhood. They say the majority insists on the historical vision of women as the center of home and family life, even when some women don’t want that. Quote from the dissent: “A state can force (a woman) to bring a pregnancy to term….No matter if doing so will destroy her life.”

EICHER: Some questions posed by the dissent asked, where is the proper line? One example: Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough to permit her to abort?

And short of the risk of death, how much illness or injury can the State require her to accept, consistent with the Constitution’s protection of liberty and equality?

In any event, these are now questions for policymakers in the states or in the U.S. Congress, as President Biden says he wants:

BIDEN: Let me be very clear and unambiguous: The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the President can do that. And if Congress, as it appears, lacks the vote — votes to do that now, voters need to make their voices heard. We need to restore the protections of Roe as law of the land. We need to elect officials who will do that.

REICHARD: With that statement, the president shows he understands one thing: the proper place for this debate is with the people through their elected officials.

And for all the furious reaction to Dobbs and the grateful reaction to it, the decision did only that one thing—return the question of abortion to the political branches.

And that’s this week’s Legal Docket.

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