Response to the Supreme Court’s Abortion Decision
in Dobbs v. Jackson Women’s Health
On June 24th, 2022, in the case of Dobbs v. Jackson Women’s Health five justices on the Supreme Court held that there is no constitutional right to an abortion and overturned both the precedent set in Roe v. Wade in 1973 and the affirmation of that precedent in Planned Parenthood v. Casey in 1992. In the majority opinion, Justice Alito denied the validity of the “right to privacy” in Roe and the broader right to autonomy, “the freedom to make
intimate and personal choices” that are central to personal dignity and autonomy, in Casey.
Based on these rights, the majority of justices in Roe and Casey had balanced the interests of a woman wanting an abortion against the interests of the state in protecting the potential life in the fetus. By denying rights to privacy or to bodily autonomy, the majority in Dobbs has destroyed that balance. Their decision has brought chaos to women living in states where legislators are eager to force a woman to complete a pregnancy against her will regardless of the circumstances related to the pregnancy.
The right to privacy in Roe and to bodily autonomy in Casey were based on the Fourteenth Amendment’s protection against denial by the state of any person’s life, liberty, or property without due process of law. In his concurring opinion in Dobbs, Justice Thomas wrote that all cases that base individual rights to personal autonomy on “liberty” in the Fourteenth Amendment should be reconsidered, as he believes that these rights do not exist. The cases that Justice Thomas listed to be reconsidered affirmed rights to use contraceptives, to private, consensual, sexual practices, and to same sex marriage. This is the core issue. Do individuals have rights to autonomous decision making over such highly personal decisions?
In his opinion Justice Alito refers to books on Common Law and to case law decisions written by men during times when married women had almost no individual rights and single women very few. No wonder that none of these historical or traditional sources stated that a woman had a right to an abortion. The conservative justices do not see as valid the evolution of the interpretation of individual rights that has taken place over the
past seventy-five years. Further, in a series of other decisions, conservatives on the Roberts court have subordinated individual rights to the religious beliefs of other individuals, to the property rights of corporations, and to the power of politicians to suppress voting and gerrymander districts. No unenumerated individual rights are safe when challenged in this court.
With these decisions the conservative justices abdicate the role of the Supreme Court as protector of individual rights. In the majority opinion and especially in Justice Kavanaugh’s concurring opinion, the conservative justices defer to the elected representatives of the people in Congress and in the states. In response to this deference the Board and members of the Charlottesville Center for Peace and Justice call on Congress to
establish by law individual rights to bodily integrity, personal autonomy, and familial relationships. These rights are essential to any meaningful understanding of “liberty” as protected by the Constitution.