In a huge victory for the pro-life movement, and the “originalist” legal movement, the Supreme Court overruled Roe v. Wade in June 2022.
In a major victory for the conservative and “originalist” legal movements, and the pro-life movement, in a case called Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled its 1973 decision in Roe v. Wade. Roe held, in spite of the word “abortion” not appearing in the Constitution, that there is a federal constitutional right to an abortion, so States could not outlaw abortion. Roe was based on prior Supreme Court cases finding an implied “right to privacy” in the Constitution.
And a later Supreme Court case held that Roe meant that States could not place an “undue burden” on obtaining an abortion.
The Dobbs case involves a challenge to a Mississippi law enacted in 2018 that makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe and later decisions allowed. Most experts estimate fetal viability to now be about 24 weeks.
Justice Alito, writing for the majority in Dobbs, stated “we hold that Roe must be overruled. There is no explicit or implicit right to abortion in the Constitution.” Far “from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted” in the 1860s. It is also “fundamentally different” from the “privacy rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” as it destroys “fetal life”—and what the Mississippi law describes as an “unborn human being.”
The Court in Dobbs held that “stare decisis,” the legal principle of appellate courts following their precedents, “does not compel unending adherence to Roe’s abuse of judicial authority.” Roe was “egregiously wrong from the start,” its reasoning was “exceptionally weak,” and it has had “damaging consequences.” It is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the rule of law demand.”
Thus, what perhaps matters more in the long run than the abortion issue—and the Court in Dobbs did not take sides on that issue—is that Dobbs sends the issue of abortion, which is nowhere mentioned in the Constitution, back to the States and the people to decide.
And that is a major victory for the “originalist” legal movement. It believes that the Constitution should be applied according to its original, public meaning by looking first to its express terms. Thus, it believes that the Constitution is not a “living” document that should change with the times. Rather, in accordance with its express terms, its meaning stays fixed.
Therefore, the Carson, Kennedy, and Dobbs decisions this year confirm the new conservative majority on the Supreme Court; and that it will (1) uphold religious liberty; (2) stick to the express terms of the United States Constitution, and its original, public meaning; and not (3) “legislate from the bench.”
