A Constitutional Earthquake: Stanford’s Jane Schacter on SCOTUS Decision to Overturn Roe v. Wade, Ending Constitutional Right to an Abortion
When I was asked to comment on the leak of today’s opinion back in May, I said it would be a constitutional earthquake if the final opinion followed the draft. Today’s decision is indeed seismic, closely tracking the draft and laying waste to a half-century of constitutional law protecting a woman’s right to control her body and to make a profound decision affecting the course of her life. In a sweeping opinion, that right is gone and it is now up to state legislators to tell women what they can and cannot do with their bodies and, if a majority of those legislators deem it appropriate, to force them to continue unwanted pregnancies. Under this regime, no matter the reason a woman seeks to terminate a pregnancy—including because her health is jeopardized, because she was raped, because the fetus has a condition making death likely shortly after birth—a majority of state legislators may usurp that deeply personal decision. It is a stunning reversal. The Court overrules not only Roe v. Wade itself, but the 1992 decision in Casey v Planned Parenthood that provided an extended, thoughtful analysis of why Roe should not be overruled. Justices Breyer, Sotomayor, and Kagan wrote an impassioned joint dissent, and the Chief Justice—no supporter of abortion rights—called for the Court to proceed more incrementally and carefully. All to no avail, so the decision to overrule Roe completely is by a bare majority of 5-4.
I could end there, but there are several other features of today’s opinions that merit mention. The 213 pages of opinions will take more time to digest fully but let me make three points:
(1) Justice Alito’s opinion emphasizes that states can now choose their policy on this contested issue and Justice Kavanaugh’s concurrence goes out of its way to emphasize that point. But Kavanaugh explicitly raises the specter of a national legislative response. His opinion, which seems meant to emphasize that states are still free to choose their own resolution of the abortion question, is far from reassuring with its reference to a role for Congress in reproductive rights. He is foreshadowing what is inevitable: a drive for Congress to enact a national ban on abortion. Indeed, calls for a national ban picked up steam as soon as the Dobbs opinion was leaked. Such a ban would put a quick end to any federalism-inspired notion that different states can choose different policies on this fraught subject. Kavanaugh’s reference to such a national ban at least suggests that he sees in the Constitution a basis for congressional authority to enact such a ban.
(2) The same constitutional doctrine that supported Roe and Casey—substantive due process under the 14th Amendment—also supports a host of other important rights, including access to birth control, a right to be intimate with the partner of your choice, and marriage equality. Both the Alito opinion and Kavanaugh concurrence are at pains to stress that today’s decision does not jeopardize those rights. But the doctrinal analysis the majority uses, if applied to those other rights, certainly would jeopardize them. Moreover, in his stark concurrence, Justice Thomas unabashedly calls for the whole doctrine supporting these rights to be thrown out. How many other justices would join him down the road? Given the obvious appetite of this Court to be aggressive in overruling precedents, the claims by Alito and Kavanaugh that Dobbs will be limited to abortion are hardly reassuring.
(3) When paired with yesterday’s decision striking down New York’s law requiring gun permits, we see an aggressive Court that is imposing on the country dramatic change in doctrine and policy. Political commentators will note how closely these decisions track priorities of conservative politicians, giving states free rein to ban abortion but not to regulate dangerous weapons as they see fit. As a law professor, what stands out to me is how starkly we can see the effects of originalism in the form that is practiced by today’s majority. There are many reasons to criticize the particulars of the originalist analyses offered to support these two blockbuster decisions. Rather than detail those, let me just say that we can see quite clearly in these decisions the results of reading the Constitution from the vantage point of the 18th and 19th century alone. The majority prioritizes the original meaning of the 14th Amendment, which was ratified more than 70 years before the 19th Amendment extended the right to vote to women. As the joint dissent pointedly observes, the 14th Amendment was written and ratified by those who did not see women as equals and had no thought of protecting either the autonomy or equal citizenship of women. It is thus striking that this Court allows none of the common sense breathing room for the more evolutionary reading of the document that has been employed by so many justices over the years. That is a bracing reality, and one that, unfortunately, is ominous for many rights that this Court may also extinguish.
Jane S. Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School. Her scholarship focuses on statutory interpretation and legislative process, constitutional law, and sexual orientation law.