Abortion and the Legitimacy of the US Supreme Court

From 1973 until 23 June 2022, all American women had the constitutional right to an abortion. On 24 June 2022, in the case Dobbs v. Jackson’s Women’s Health Organization, the Supreme Court ruled that not only did that right no longer exist, but it had been mistakenly granted in the 1973 case Roe v. Wade and wrongly upheld in the 1992 case Planned Parenthood v. Casey.

Dobbs’ impact on American politics has been seismic. Representative Alexandria Ocasio-Cortez and Senator Elizabeth Warren have claimed that it constitutes overreach on the part of the Court and has provoked “a crisis of legitimacy,” while Senate Republican Leader Mitch McConnell views it as a return to interpreting “the law as it is written.”

Who is right? Was overturning Roe the act of a politicized and illegitimate Court, or the return to its proper role and function? The answer begins in 1973, when Roe v. Wade was decided.

Prior to 1973, abortion was hotly debated and each of the 50 states had its own abortion policy. While abortions were generally available in more liberal areas, 30 states had imposed near-total bans. Roe v. Wade truncated that debate by declaring that it was unconstitutional to restrict abortion during the first trimester of pregnancy. The Court based its decision on the right to privacy in intimate affairs, such as the use of contraception. While the right to privacy does not expressly appear in the text of the Constitution, it had been implied from it by prior Courts.

Many prominent legal scholars, including liberal icon Justice Ruth Bader Ginsburg, have criticised the reasoning of Roe v. Wade, even as they applauded its outcome. For Justice Ginsburg, Roe “stopped the momentum on the side of change.” She felt that abortion rights should have been secured more gradually, in a process that included state legislatures, and was troubled by the fact that Roe was based on the right to privacy, rather than on women’s rights. Her criticism would prove prophetic.

In 1992, the Court upheld Roe in Planned Parenthood v. Casey. The Casey Court, however, abandoned the trimester framework and created a new standard—that no state could impose an “undue burden” on the right to abortion prior to the viability of the foetus. Justices William Rehnquist, Antonin Scalia and Clarence Thomas dissented, arguing that Roe had been wrongly decided because separation of powers dictates that Congress, not the Court, is the political body with the power to create rights, and that, as such, it is improper for the Court to imply the existence of rights that are not expressly enumerated in the Constitution or created by legislation.

By overturning Roe and Casey, Dobbs essentially returned the United States to the constitutional state of play prior to 1973, allowing each state to decide if and how to regulate abortion.

So, did Dobbs damage the Court’s legitimacy? The answer to that question is fundamentally intertwined with the constitutional structure of the Court, and how the Court safeguards the rule of law.

The Supreme Court has the final say on legal matters in the United States and resolves contentious questions of constitutional interpretation. Yet the Court controls no armies or police departments. The rule of law is preserved because the Supreme Court’s interpretations are regarded as final, not because the Court has the power to directly enforce its rulings through the threat of violence.

If the Court were regarded as illegitimate, then its rulings would be suspect and could be ignored by states or federal officers. It might even be considered virtuous to disregard an illegitimate court. Instead of being united under one constitution, US law would become fragmentary and uncertain. The legitimacy of the Supreme Court is therefore central to the rule of law, which in turn is the foundation of American democracy.

Calling the legitimacy of the Court into question, then, has potentially far-reaching impact. Is Dobbs sufficient reason to do so?

Public opinion is certainly against Dobbs. A clear majority of Americans believe that Roe v. Wade should not have been overturned. But the Supreme Court is charged with interpreting the law, and public opinion is not supposed to factor into its judgment. That is why justices are appointed instead of elected, and given lifetime terms that insulate them from political pressures. Nor is the Court inclined to decide the moral or religious questions upon which most people base their opinions on abortion. In neither Roe nor Casey did the Court rule that a foetus was not a life, and even in Dobbs the Court merely referred to a foetus as a “potential life.”

Instead, the Court focuses on constitutional protections that prevent the government from infringing on its citizens’ fundamental rights and dignities. In this way, the Court safeguards American democracy from the majority, who could otherwise use their voting power to tyrannize over the minority.

In any democracy, the majority generally rules. Constitutional rights, however, are an exception from the democratic process. No matter how popular a law might be, if it violates the Constitution, it will be struck down. It doesn’t matter how many Americans vote in favour of government censorship—the right to free speech will be protected by the Supreme Court. And even laws that garner wide public support are struck down by the Court if they violate the Constitution (as was the case when the Court recently overturned New York State’s laws restricting the right to carry concealed firearms, despite the fact that those laws enjoyed overwhelming popularity in New York).

There are deep divides, however, as to how the Supreme Court should interpret the Constitution. This is particularly true when it comes to constitutional rights that do not appear in the text of the Constitution. These unenumerated rights, such as the right to privacy, have been implied from the Constitution by the Supreme Court over time—updating the meaning of the Constitution to meet the needs of the present day.

Roe relied on the unenumerated right to privacy: a right that had previously been invoked in Griswold v. Connecticut (1965), which ruled that states could not prevent married couples from purchasing contraceptives, and in Eisenstadt v. Baird (1972), which extended that right to unmarried couples. The right to privacy has since been used as the basis for the rights to same-sex sexual intimacy and marriage.

But whether it is appropriate for the Court to imply new constitutional rights is one of the most contentious issues in American legal theory. The controversy centres on two contrasting philosophies of constitutional interpretation.

The more liberal approach, living constitutionalism, holds that the justices should be influenced in their interpretation of the Constitution by the needs of society and the values of their time, as well as by legal precedent. Living constitutionalists view the Court as ideally positioned to resolve disputes about fundamental rights, and regard it as permissible for the Court to do so because they believe that the Constitution does not have a single objectively correct interpretation, but is a living document that must be constantly re-evaluated.

In the more conservative approach, originalism, the Court’s role is more akin to that of an umpire. It does not create laws—that is Congress’s job. The Court merely rules on the cases before it. If a new right is to be established, elected officials should be the ones to do so—not nine lawyers who are largely unaccountable to the public. Originalists are disinclined to reinterpret provisions of the Constitution in the light of current events because they believe that each provision of the Constitution has a single, objectively correct interpretation—how that provision was publicly understood at the time it was enacted. Accordingly, nothing that has happened after its enactment is relevant to the meaning of the Constitution.

Perhaps the best way to understand the difference between originalists and living constitutionalists is to compare their views on congressional gridlock—a common occurrence in the United States. For a law to be passed, it needs to gain majority support in both the House of Representatives and the Senate and then either the president must sign off on the law or there must be a majority vote large enough to overrule his veto. It is even more difficult to amend the Constitution. Any proposed amendment must be ratified by at least three-quarters of the states, in addition to receiving overwhelming federal support. These checks and balances make it very difficult for any political faction to make rapid, sweeping changes. As a result, it is easy for the system to grind to a halt, frustrating advocates for change.

For living constitutionalists, the Supreme Court offers a means to cut through that gridlock. The Court can establish a new right (such as the right to abortion) even in the absence of sufficient political will to pass a law or constitutional amendment. This was the case with Roe, which was decided at a time when 30 states had banned abortion.

Originalists, on the other hand, view gridlock as a feature of the federal system rather than a bug. For them, checks and balances were put in place by the founders to limit the power of the federal government and protect the people from government overreach.  Accordingly, they believe that it is inappropriate for the Court to create or imply rights.  That is the legislature’s role, and the Court risks eroding the separation of powers when it strays into Congress’s territory.

Originalism’s hostility towards unenumerated rights, more than any other factor, explains the Court’s decision in Dobbs. Six of the Court’s nine justices are currently Republican appointees and four of those (Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett) are originalists.

In overturning Roe, the majority of the Court found that Roe was “egregiously wrongly decided” due to three fundamental flaws in the opinion. First, they criticized Roe for failing to anchor its ruling to any enumerated constitutional provision.

Second, they held that Roe’s invocation of the doctrine of substantive due process was improperly reasoned. Substantive due process is a legal doctrine linked to the 14^th Amendment to the Constitution, and teaches that certain rights are so fundamental to America’s “ordered liberty” that they cannot be denied, even though they do not appear in the text of the Constitution. Roe held that the right to an abortion was one such right.

The Dobbs Court was unconvinced by that reasoning. They explained that for a right to be guaranteed by substantive due process, it must be part of the “history and tradition” of American liberty. But, as originalists, the only relevant “history and tradition” was prior to 1868, when the 14^th Amendment was ratified, because that is the only period that could have informed the meaning of that amendment when it was enacted. Before 1868, there was no general right to abortion in America and so, from an originalist perspective, Roe’s reliance on substantive due process was “egregiously wrongly” decided.

Third, the majority rebutted Roe’s reliance on the implied right to privacy. They observed that abortion—unlike other privacy rights such as the rights to same-sex intimacy and marriage and the use of contraception—negatively impacts a “potential life.” As the Constitution does not spell out what weight to give that potential life, that decision is reserved for the states or Congress, and is not for the Court to decide.

Reasoning that no provision of the Constitution supports Roe, and that neither substantive due process nor the right to privacy implies a right to abortion, the majority held that Roe was egregiously wrongly decided and overturned it.

While the majority’s reasoning is entirely consistent with originalism, it has been sharply criticized for failing to give adequate weight to Roe and Casey as settled law.

The US common law system is based on legal precedent and on the doctrine of stare decisis (“to stand by things decided”), which requires that the Court defer to its prior rulings unless those rulings were “egregiously wrongly decided.” The Supreme Court has the power to overturn its prior decisions, but this is a rare occurrence because such major changes to the law are destabilizing. But Roe was not just settled precedent; it had already been reviewed and affirmed by a prior Supreme Court in Casey. The majority’s willingness to overturn such well-settled law has led many (including the liberal minority of the Court) to wonder whether other rights based on the right to privacy—such as the rights to contraception and same-sex marriage—could also be rescinded.

Justice Clarence Thomas wrote separately in Dobbs to express his willingness to entertain such challenges, but the other conservative judges do not appear to be in lockstep with him in that regard. Justice Samuel Alito (the author of Dobbs) was careful to distinguish abortion from other substantive due process rights in the opinion. Justice Brett Kavanaugh wrote separately to expressly deny the risk to such rights, emphasizing that the right to abortion is a special case, since it impacts potential life in a way that no other privacy-based right does. And Chief Justice John Roberts even declined to endorse the reasoning of the majority in Dobbs, writing that he would have preserved a more limited version of Roe if he had had the votes to do so.

So, did Dobbs damage the Court’s legitimacy? Did the Court overstep its role in reversing Roe?

The final say on how to interpret the Constitution belongs to the Supreme Court, and whether the Court is originalist or not is decided through the democratic process, as it depends on whether Democrats or Republicans are in power and can control the appointment process.

In the waning years of the Obama administration, Republicans controlled the Senate and were able to prevent President Obama from filling the opening left by Justice Scalia’s death. After President Trump defeated Secretary Clinton in the 2016 election and the Republicans secured a Senate majority, Trump was able to appoint Justices Gorsuch, Kavanaugh and Barrett, securing a conservative and originalist majority—making originalism the “correct” legal philosophy, at least for now.

So, if you disagree with Dobbs, you should vote for politicians who will appoint living constitutionalists or pass laws enshrining the rights you are concerned about. But it is unwise to call the Court illegitimate merely because you disagree with it. One of the most important, features of democracy is that we can support the legitimacy of the institutions that make democracy possible, even when we disagree with what those institutions are doing.