The Conservative Case for Upholding Roe v. Wade
In May, when a draft opinion of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was leaked to the American public, I, like everyone else, was shocked. Three things immediately crossed my mind: this was totally unprecedented, the person who did this must be prosecuted to the fullest extent of the law, and, if Associate Justice Samuel Alito did not amend his majority opinion in order to appease the already polarized public, the Supreme Court would never be seen the same way again.
To be clear, it would’ve been wrong for Alito to amend his opinion in order to satisfy the pro-choice population of this country, and it could not be more evident from Alito’s personality that he never considered that option for even a second. When the official opinion was published the following month, it was as if gasoline had been poured on an already raging wildfire. Protests erupted in major cities, trigger laws and zombie laws took effect in several Republican-controlled states that had been anticipating the fall of Roe for quite some time, and a wedge was placed between our already extremely divided electorate.
Politically, the fall of Roe shifted priorities for both Democrats and Republicans. Democrats made abortion a centerpiece issue in their midterm campaigns, and it appears that voters agreed with their pro-choice sentiment, even in traditionally conservative areas. Earlier this year, a ballot measure in Kansas, which attempted to remove abortion rights from the state constitution, failed, while a similar ballot measure in Kentucky also failed.
While just 6 in 10 voters believe abortion should be legal in all or most cases, a decidedly slim majority, the abortion issue helped Democrats more than it hurt them and effectively curbed the possibility of Republicans gaining a landslide majority in the House. Meanwhile, Republicans either doubled down on their pro-life stances or shifted away from the abortion issue towards other issues of high importance to ordinary Americans, such as record-high inflation as well as soaring gas and food prices.
The results of the midterms are clear: Democrats will keep their Senate majority and Republicans will control the House by the slimmest of margins, a result which defies all previous trends and conventional wisdom.
While we’ve only recently gained a better understanding of how Dobbs has impacted the United States politically, its impact on the Supreme Court has been abundantly clear since June. Dobbs reflected and exacerbated a devastating trend: Americans losing faith in the Supreme Court as an institution. According to a Gallup poll from late September, just 47% of Americans have faith in the judicial branch while a mere 40% of Americans approve of the job the Supreme Court is doing, which are record lows.
Indeed, how Americans perceive the role of the Supreme Court in society has dramatically shifted over the past half-century. The Supreme Court was once mostly perceived in alignment with its intended role: as a nonpartisan, independent institution whose job was to interpret laws as they stood (as opposed to inventing new ones) and apply those interpretations to specific cases. Now, both the political left and political right perceive the Supreme Court as a primarily outcome-oriented institution. Democrats have begun to view the Supreme Court as an alternative method to impose their political agenda on the American people while avoiding and illegitimately superseding the very difficult legislative process.
While Republicans have long viewed the Supreme Court as a nonpartisan institution, in the immediate aftermath of the 2020 presidential election, Republican politicians began to see the Supreme Court, as well as the entire American judiciary, as an outlet they could use to capitalize on their baseless claims of widespread election fraud and invalidate election results. On the whole, the Supreme Court is no longer perceived by the American people as an independent institution, and the institution itself has gradually shifted away from the impartiality that is so central to both its existence and to our republic.
Why did this happen, exactly? It could be partially attributed to the evolving nature of the Senate confirmation process, which has become more polarized and more politicized in recent years. In 2020, then-Judge Amy Coney Barret, a conservative, was confirmed to the Court along party lines, with only one Republican in opposition. This marks a dramatic shift from decades past; in 1986, former Associate Justice Antonin Scalia, who was one of the Court’s staunchest conservatives and the intellectual figurehead of originalism, was confirmed to the Court unanimously.
But the Court’s shift away from total neutrality mostly has to do with the its hard shift towards liberal constitutional theories and outright judicial activism in the 1960s and 1970s, which brought sudden toleration, and even acceptance, of justices abandoning impartiality and letting their personal beliefs about what rights the Constitution guarantees influence their legal interpretations and the decisions those interpretations ultimately informed.
There have been notable instances during this time period when the Court simply invented rights that had no constitutional grounds for existing (keeping in mind that a right is only a right if it is explicitly addressed in the text of the Constitution), and the Court even invented a legal principle called substantive due process, which seemingly granted them the authority to invent and protect certain “fundamental rights” from government interference even though such rights are never explicitly enumerated in the Constitution, to give these poorly reasoned decisions the appearance of being rational or even pioneering.
While the Burger and Rehnquist Courts were able to curb the judicial activism of the Warren Court to a reasonable extent, and the current Roberts Court has mostly trended in favor of respecting constitutional principles, the damage had already been done. Wildly and unreasonably extrapolating from constitutional provisions in order to invent new rights, and then subsequently imposing them on the ideologically diverse public while disenfranchising them in the process, has become all but commonplace in the Supreme Court.
This has had the effects of stripping away the Court’s impartiality, causing the public to perceive the Court as a political institution rather than an independent entity, and creating a culture where justices abusing their power is the norm, which have collectively undermined our democracy.
Roe v. Wade, the landmark 1973 decision which established a federal constitutional right to abortion, is a prime example of the destructive judicial activism and abuse of power that has gradually damaged the Court’s reputation, integrity, and public image. Even as someone who is pro-choice, it is my view that Roe ranks among the worst Supreme Court decisions of both the twentieth century and of all time. The decision is rooted in the inherently incorrect and fallacious substantive due process principle that the Court began to implement during this time period. In reality, as Justice Alito correctly puts it, the Constitution does not confer a right to abortion because abortion is never explicitly addressed in any constitutional provision.
Abortion is not an issue that the Constitution grants any kind of special or elevated legal status; it is just one of millions upon millions of issues that are left to democratic choice, and are best dealt with by the people and their elected representatives. In other words, the question of whether or not the constitutional right to abortion exists and must be ensured by the federal government is of no importance to the Supreme Court because the answer is obviously no. When people complain that their “fundamental right” (that phrase is a buzzword, in and of itself) to abortion was taken away as a result of Dobbs, they must realize that the right to abortion never legitimately existed in the first place.
Roe also roots its reasoning in the notion that abortion is an implicitly guaranteed right under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. This is also wrong, and to suggest they do, as the Court did in 1973, would be an egregious misinterpretation of both of those clauses. While Roe did not make the trend of making constitutional rights up out of thin air and then rooting those decisions in the irrational, politically charged substantive due process principle mainstream (we can thank Griswold v. Connecticut, the decision that established a constitutional right to contraception, for that), it did exacerbate that trend to a damning degree and caused irreparable harm to the Court in the process. Roe is a decision that has more in common with political dogma than with any rational constitutional interpretation.
But as vehemently opposed as I am to the legal atrocity that is Roe v. Wade, as we approach the six month anniversary of the Court’s decision in Dobbs, it has become evident that Roe should not have been overturned, and that’s not because of any political or social trends. Dobbs tried to do three things which were certainly admirable: correct the theoretical errors of the past, ease polarization by removing the Supreme Court from the abortion debate, and signal a newfound respect for the constitutional principles that are so central to our federalist system of government.
If Alito’s opinion had been the majority opinion in 1973, supporting it would have been a no-brainer. But now, in 2022, we can see that the Dobbs decision obviously did not ease polarization, and it teaches us a valuable lesson about why in some cases, distinguishing theoretical from pragmatic could not be more essential. Theoretically, all bad legal precedent should be overturned, so by that logic, overturning Roe v. Wade is an excellent decision. As I mentioned, Roe’s legal reasoning was extremely poor, to say the least, so it would certainly meet the criteria from a theoretical standpoint to be overturned.
But while I strongly believe that our democracy is undermined when judges let their personal or political opinions influence their decisions, as well as when judges take into account the sociopolitical contexts of the cases presented to them, as was the case in Roe, there is, in fact, a situation where it’s acceptable for the Court to do both: when a case directly challenges long-standing legal precedent. Roe, as poorly reasoned as it was, had been reaffirmed countless times during the nearly five decades it remained intact, most notably with the Court’s 1992 decision in Planned Parenthood v. Casey, which granted Roe the colloquial status of “settled law.”
Considering this, why did the Court decide to hear Dobbs in the first place? Mississippi’s Gestational Age Act, the law at the center of Dobbs, which imposed a 15-week ban on abortion without exceptions for rape or incest, blatantly contradicts the existing legal precedent surrounding abortion policy in the United States, which held that abortion is a constitutional right until the point of fetal viability.
This precedent, even though the line which it drew didn’t make any sense and was completely arbitrary, was able to strike a balance between the state’s interest in both protecting unborn life as well as the privacy and autonomy of women. I see no legitimate reason why the justices voted to hear Dobbs other than a desire by the extremely conservative justices to overturn Roe v. Wade in its entirety. It is simply unprecedented that the Supreme Court decides to hear a case with the sole intention of overturning a previous decision that had been reaffirmed for the past fifty years, which makes Dobbs a unique situation. For those prior motivations to exist in the first place is incredibly unethical.
It was essentially as if the Court had already decided Dobbs before any oral arguments took place. Dobbs, in my view, had no reason to be heard by the Supreme Court.
Knowing Dobbs was heard, though, how should the Court have taken into account the case’s sociopolitical context and factor in their own personal beliefs? Why couldn’t the Court have simply upheld Roe simply because of a respect for precedent? A respect for precedent is simply an insufficient basis for a decision because some precedent is awful and deserves to be overturned. If the Court ever heard a case that directly challenged Korematsu v. United States, the egregious decision which held that Japanese internment camps during World War II were constitutional, it would not uphold Korematsu simply because it is precedent.
In order to determine whether or not the precedent should remain intact, it is the Court’s obligation to analyze the impact such precedent has had on society as a whole, including the demographic of people that were central to the original decision. This kind of analysis was mistakenly not conducted in Dobbs.
If we assume that a desire to reconsider, if not necessarily overturn, Roe was the reason why the Court voted to hear Dobbs, analyzing how Roe has affected the United States would’ve been practically obligatory. In fact, analyzing how past decisions have impacted the (at the time) current American landscape is something that the Supreme Court has done before. When the Court decided Brown v. Board of Education in 1954, which directly challenged the “separate but equal” legal doctrine established in 1896’s Plessy v. Ferguson, its decision analyzed the impact of this doctrine on public education in the United States. In his unanimous opinion for Brown, Chief Justice Earl Warren wrote, “To separate them [African-American schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
Roe v. Wade was decided during a period in American history when women sought to expand upon the achievements of the suffrage movement and began protesting against the social order. The advent of birth control in the early 1960s, combined with the legislative victories of the civil rights movement, provided women with the ideal backdrop to protest for equality of the sexes. Women began rapidly entering the workforce in the 1970s, discourse surrounding ratifying an Equal Rights Amendment to the Constitution was common, and beginning in the 1960s, a number of states began loosening their abortion restrictions.
Should this context, or what people thought the impact of legalizing abortion nationwide on women would be, have been taken into consideration when the Court originally heard Roe? No, not even in the slightest, and the Court ultimately doing so caused irreparable harm, as mentioned. But upon analyzing the impact of Roe in 2022, forty- nine years later, regardless of how fundamentally awful its legal reasoning is, it is clear that the decision has granted women privacy, bodily autonomy, the freedom to make their own decisions regarding reproductive healthcare without excessive government interference, and above all, a sense of equality under the law. Roe has benefitted more women than it has harmed, and thus, should be respected and left alone.
While one could make the case that Roe negatively impacted society by stripping the ability of citizens and elected officials to regulate abortion, an issue with zero constitutional protection, this argument is outweighed by the positive impact that Roe has had on women in all regions of the country, including those which would regulate or criminalize abortion. Of course, someone who’s pro-life would fundamentally disagree with this analysis, and I have no idea how the six conservative justices feel about abortion because their personal opinions are private, as they should be. Perhaps if they were all pro-life the decision would not have changed.
But the fact that the majority of justices in Dobbs did not bother conducting an impact analysis of Roe on women was a grave misstep. Ultimately, the Court’s decision in overturning Roe v. Wade shows us that there are situations when an analysis of how long-standing legal precedent has impacted society can justify the upholding of such precedent, even when it is poorly reasoned, fundamentally flawed, or even damaging to a sacred institution. In other words, Dobbs teaches us that sometimes, the Supreme Court should uphold precedent because its positive pragmatic effects over time outweigh its theoretical pitfalls.
The course of action the Supreme Court should’ve taken in Dobbs would have been to simply uphold Roe. Chief Justice Roberts decided to both uphold Mississippi's Gestational Age Act and the broad right to an abortion, which seems like a fair compromise between the two ideological camps, but even that opinion strays from the delicate precedent established by Roe and reaffirmed by Casey. Nonetheless, as we continue to adjust to a post-Roe society, it is essential that politicians and governments at all levels across the United States take whatever measures they can in order to protect the ability of women to freely make their own reproductive healthcare decisions. After all, abortion is an inherently political issue.