The Supreme Court of the US holds that there is no longer a federal constitutional right to an abortion under the(Fourteenth Amendment) in section 1 of the Constitution,1868
July 19, 2022
Dobbs v Jackson Women’s Health Organization
USSC 19–1392 of 2021
Supreme Court of the United States
Roberts, CJ & SCJ; Alito, Thomas, Gorsuch, Kavanaugh, Barrett, Breyer, Sotomayor, and Kagan, SCJJ
June 24, 2022
Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional Law- Bill of rights- right to equality- abortion rights- where Mississippi’s Gestational Age Act of 2018 allowed for abortion in medical emergency or severe fetal abnormality- where the Mississippi’s Gestational Age Act of 2018 prohibited intentional abortion of a fetus aged more than 15 weeks who had no severe fetal abnormalities and was not in a medical emergency- whether the right to abortion was rooted in America’s history and tradition to form an essential component of ordered liberty-Mississippi Gestational Age Act of 2018 § 41-41-191; Constitution of the United States of America (Fourteenth Amendment), 1868, section 1.
Stare decisis- conditions for overruling a case law- Roe and Casey cases- where Roe and Casey struck a balance between the interests of a woman who wanted an abortion and the interests of what they termed potential life-whether a right to obtain an abortion was part of a broader entrenched right that was supported by other precedents-whether the Supreme Court was justified to follow Roe and Casey or overrule them.
Mississippi’s Gestational Age Act of 2018 (the Act) provided that except in a medical emergency or in the case of a severe fetal abnormality, a person should not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being had been determined to be greater than fifteen weeks. The respondents challenged the Act in Federal District Court, alleging that it violated the court’s precedents establishing a constitutional right to abortion, in particular Roe v Wade, 410 US 113, and Planned Parenthood of Southeastern Pa v Casey, 505 US 833. The District Court granted summary judgment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violated the court’s cases forbidding states to ban abortion pre-viability. The petitioners defended the Act on the grounds that Roe and Casey were wrongly decided and that the Act was constitutional because it satisfied rational-basis review.
- Whether the right to abortion was rooted in America’s history and tradition to form an essential component of ordered liberty.
- Whether a right to obtain an abortion was part of a broader entrenched right that was supported by other precedents.
- Whether the Supreme Court was justified to follow Roe and Casey or overrule them.
Relevant provisions of the law
Mississippi Gestational Age Act of 2018
(4) Abortion limited to fifteen (15) weeks’ gestation except in medical emergency and in cases of severe fetal abnormality.
(a) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report to be filed with the department as set forth in paragraph (c) of this subsection. The determination of probable gestational age; shall be made according to standard medical practices and techniques used in the community.
(b) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.
(c) In every case in which a physician performs or induces an abortion on an unborn human being whose gestational age is greater than fifteen (15) weeks, the physician shall within fifteen (15) days of the abortion cause to be filed with the department, on a form supplied by the department, a report containing the following information:
(i) Date the abortion was performed;
(ii) Specific method of abortion used;
(iii) The probable gestational age of the unborn human being and the method used to calculate gestational age;
(iv) A statement declaring that the abortion was necessary to preserve the life or physical health of the maternal patient;
(v) Specific medical indications supporting the abortion; and(vi) Probable health consequences of the abortion and specific abortion method used.
The physician shall sign the form as his or her attestation under oath that the information stated thereon is true and correct to the best of his or her knowledge.
Constitution of the United States of America (Fourteenth Amendment), 1868
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Held by majority
- For the first 185 years after the adoption of the Constitution of the United States of America, 1789 (the Constitution), each state was permitted to address the issue of abortion in accordance with the views of its citizens. Then, in 1973, the Supreme Court decided Roe v Wade, 410 US 113. Even though the Constitution made no mention of abortion, the court held that it conferred a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).
- Roe and Casey had to be overruled. The Constitution made no reference to abortion, and no such right was implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey then chiefly relied on—the due process clause of the Fourteenth Amendment. That provision had been held to guarantee some rights that were not mentioned in the Constitution, but any such right had to be deeply rooted in America’s history and tradition and implicit in the concept of ordered liberty.
- The right to abortion did not fall within that category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy. The abortion right was also critically different from any other right that the court had held to fall within the Fourteenth Amendment’s protection of liberty. Roe’s defenders characterized the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion was fundamentally different, as both Roe and Casey acknowledged, because it destroyed what those decisions called fetal life and what the law before the court described as an unborn human being.
- The Mississippi’s Gestational Age Act of 2018 contained the central provision that except in a medical emergency or in the case of a severe fetal abnormality, a person should not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being had been determined to be greater than fifteen (15) weeks. The legislature found that most abortions after 15 weeks employed dilation and evacuation procedures which involved the use of surgical instruments to crush and tear the unborn child, and it concluded that the intentional commitment of such acts for nontherapeutic or elective reasons was a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.
- Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide. Hale wrote that if a physician gave a woman with child a potion to cause an abortion, and the woman died, it was murder because the potion was given unlawfully to destroy her child within her. Blackstone wrote that the law would imply malice for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person. Although common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, the court was not aware of any common-law case or authority, and the parties had not pointed to any, that remotely suggested a positive right to procure an abortion at any stage of pregnancy.
- The original ground for drawing a distinction between pre- and post-quickening abortions was not entirely clear, but some had attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus until the period of quickening there was no evidence of life; and whatever could be said of the fetus, the law had fixed upon that period of gestation as the time when the child was endowed with life because fetal movements were the first clearly marked and well defined evidences of life.
- The solicitor general offered a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus as having a separate and independent existence. But the case on which the solicitor general relied for that proposition also suggested that the criminal law’s quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that to many purposes, in reference to civil rights, an infant en ventre sa mere was regarded as a person in being.
- During the 19th century, the vast majority of the United States enacted statutes criminalizing abortion at all stages of pregnancy. By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.
- By the end of the 1950s, according to the Roe court’s own count, statutes in all but four States and the District of Columbia prohibited abortion however and whenever performed, unless done to save or preserve the life of the mother. In the time of Roe, 30 states still prohibited abortion at all stages except to save the life of the mother. Though Roe discerned a trend toward liberalization in about one-third of the states, those states still criminalized some abortions and regulated them more stringently than Roe would allow.
- Supporters of Roe and Casey contended that the abortion right was an integral part of a broader entrenched right. Roe termed that a right to privacy and Casey described it as the freedom to make intimate and personal choices that were central to personal dignity and autonomy. Casey elaborated that at the heart of liberty was the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
- Ordered liberty set limits and defined the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wanted an abortion and the interests of what they termed potential life. But the people of the various states could evaluate those interests differently. In some states, voters could believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other states could wish to impose tight restrictions based on their belief that abortion destroyed an unborn human being. America’s historical understanding of ordered liberty did not prevent the people’s elected representatives from deciding how abortion should be regulated.
- What sharply distinguished the abortion right from the rights recognized in the cases on which Roe and Casey relied on was that abortion destroyed, what those decisions called potential life and what the law at issue in that case regarded as the life of an unborn human being. None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They were therefore inapposite. They did not support the right to obtain an abortion, and by the same token, since the Constitution did not confer such a right, it did not undermine them in any way.
- Five factors weighed strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the workability of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors did not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but raw judicial power, the court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally left for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side.
- The quality of the reasoning in a prior case had an important bearing on whether it should be reconsidered. The Casey plurality, while reaffirming Roe’s central holding, pointedly refrained from endorsing most of its reasoning. It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary undue burden test and relied on an exceptional version of stare decisis that the court had never before applied and had never invoked.
- Dividing pregnancy into three trimesters, the court imposed special rules for each. During the first trimester, the court announced that the abortion decision and its effectuation had to be left to the medical judgment of the pregnant woman’s attending physician. After that point, a state’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a state could regulate the abortion procedure in ways that were reasonably related to maternal health. Finally, in the stage subsequent to viability, which in 1973 roughly coincided with the beginning of the third trimester, the state’s interest in the potentiality of human life became compelling, and therefore a state could regulate, and even proscribe, abortion except where it was necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
- Thecourt did not explain why mortality rates were the only factor that a state could legitimately consider. Many health and safety regulations aimed to avoid adverse health consequences short of death. And the court did not explain why it departed from the normal rule that courts deferred to the judgments of legislatures in areas fraught with medical and scientific uncertainties. An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions.
- Among the characteristics that had been offered as essential attributes of personhood were sentience, self-awareness, the ability to reason, or some combination thereof. It would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merited protection as persons. But even if one took the view that personhood started when a certain attribute or combination of attributes was acquired, it was very hard to see why viability should mark the point where personhood begun.
- Due to the development of new equipment and improved practices, the viability line had changed over the years. In the 19th century, a fetus could not have been viable until the 32nd or 33rd week of pregnancy or even later. When Roe was decided, viability was gauged at roughly 28 weeks. The respondents drew the line at 23 or 24 weeks. So, according to Roe’s logic, states then had a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973 states did not have an interest in protecting an identical fetus. Viability also depended on the quality of the available medical facilities. Thus, a 24-week-old fetus could be viable if a woman gave birth in a city with hospitals that provided advanced care for very premature babies, but if the woman traveled to a remote area far from any such hospital, the fetus could no longer be viable.
- A physician determining a particular fetus’s odds of surviving outside the womb had to consider a number of variables, including gestational age, fetal weight, a woman’s general health and nutrition, the quality of the available medical facilities, and other factors. It was thus only with difficulty that a physician could estimate the probability of a particular fetus’s survival. And even if each fetus’s probability of survival could be ascertained with certainty, settling on a probability of survival that should count as viability was another matter. The viability line, which Casey termed Roe’s central rule, made no sense, and it was telling that other countries almost uniformly eschewed such a line. The court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the states less freedom to regulate abortion than the majority of western democracies enjoyed.
- When Casey revisited Roe almost 20 years later, very little of Roe’s reasoning was defended or preserved. The court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s due process clause. The court did not reaffirm Roe’s erroneous account of abortion history. The court also made no real effort to remedy one of the greatest weaknesses in Roe’s analysis on the discussion of viability. The court retained what it called Roe’s central holding—that a state could not regulate pre-viability abortions for the purpose of protecting fetal life— but it provided no principled defense of the viability line. Instead, it merely rephrased what Roe had said, stating that viability marked the point at which the independent existence of a second life could in reason and fairness be the object of state protection that then overrode the rights of the woman.
- The Casey plurality tried to put meaning into the undue burden test by setting out three subsidiary rules, but those rules created their own problems. The first rule was that a provision of law was invalid, if its purpose or effect was to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attained viability. Whether a particular obstacle qualified as substantial was often open to reasonable debate. The second rule, which applied at all stages of a pregnancy, muddied things further. It stated that measures designed to ensure that the woman’s choice was informed were constitutional so long as they did not impose an undue burden on the right. To the extent that that rule applied to pre-viability abortions, it overlapped with the first rule and appeared to impose a different standard.
- The third rule complicated the picture even more. Under that rule, unnecessary health regulations that had the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion imposed an undue burden on the right. That rule contained no fewer than three vague terms. It included the two already discussed—undue burden and substantial obstacle—even though they were inconsistent. And it added a third ambiguous term when it referred to unnecessary health regulations. The term necessary had a range of meanings—from essential to merely useful.
- In addition to those problems, one more applied to all three rules. They all called on courts to examine a law’s effect on women, but a regulation could have a very different impact on different women for a variety of reasons, including their places of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions. In order to determine whether a regulation presented a substantial obstacle to women, a court needed to know which set of women it should have in mind and how many of the women in that set had to find that an obstacle was substantial.
- The Casey plurality was certainly right that it was important for the public to perceive that the court’s decisions were based on principle, and that the court should make every effort to achieve that objective by issuing opinions that carefully showed how a proper understanding of the law led to the results it reached. But the court could not exceed the scope of its authority under the Constitution, and it could not allow its decisions to be affected by any extraneous influences such as concern about the public’s reaction to its work. The court had no authority to decree that an erroneous precedent was permanently exempt from evaluation under traditional stare decisis principles. A precedent of the court was subject to the usual principles of stare decisis under which adherence to precedent was the norm but not an inexorable command. If the rule was otherwise, erroneous decisions like Plessy and Lochner would still be the law.
- The concurrence would leave for another day whether to reject any right to an abortion at all, and would hold only that if the Constitution protected any such right, the right ended once women had had a reasonable opportunity to obtain an abortion. The concurrence did not specify what period of time was sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi’s law, was enough—at least absent rare circumstances.
- The concurrence’s most fundamental defect was its failure to offer any principled basis for its approach. The concurrence would discard the rule from Roe and Casey that a woman’s right to terminate her pregnancy extended up to the point that the fetus was regarded as viable outside the womb. But that rule was a critical component of the holdings in Roe and Casey, and stare decisis was a doctrine of preservation, not transformation. Therefore, a new rule that discarded the viability rule could not be defended on stare decisis grounds.
- Stare decisis could not justify the new reasonable opportunity rule propounded by the concurrence. If that rule was to become the law of the land, it had to stand on its own, but the concurrence made no attempt to show that that rule represented a correct interpretation of the Constitution. The concurrence did not claim that the right to a reasonable opportunity to obtain an abortion was deeply rooted in America’s history and tradition and implicit in the concept of ordered liberty. Nor did it propound any other theory that could show that the Constitution supported its new rule. And if the Constitution protected a woman’s right to obtain an abortion, the opinion did not explain why that right should end after the point at which all reasonable women would have decided whether to seek an abortion.
- The states could regulate abortion for legitimate reasons, and when such regulations were challenged under the Constitution, courts could not substitute their social and economic beliefs for the judgment of legislative bodies. That respect for a legislature’s judgment applied even when the laws at issue concerned matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, was entitled to a strong presumption of validity. It had to be sustained if there was a rational basis on which the legislature could have thought that it would serve legitimate state interests.
- Those legitimate interests justified Mississippi’s Gestational Age Act of 2018. Except in a medical emergency or in the case of a severe fetal abnormality, the statute prohibited abortion if the probable gestational age of the unborn human being had been determined to be greater than fifteen (15) weeks. The Mississippi legislature’s findings recounted the stages of human prenatal development and asserted the state’s interest in protecting the life of the unborn.
- The legislature also found that abortions performed after 15 weeks typically used the dilation and evacuation procedure, and the legislature found the use of that procedure for nontherapeutic or elective reasons to be a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession. Those legitimate interests provided a rational basis for the Gestational Age Act of 2018, and it followed that the respondents’ constitutional challenge had to fail.
- Abortion presented a profound moral question. The Constitution did not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The court overruled those decisions and returned that authority to the people and their elected representatives.
Per Breyer, Sotomayor, and Kagan, SCJJ (dissenting)
- For half a century, Roe and Casey had protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguarded a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life; hence, it could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over the most personal and most consequential of all life decisions.
- Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The court knew that Americans held profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. And the court recognized state had legitimate interests from the outset of the pregnancy in protecting the life of the fetus that could become a child. So the court struck a balance, as it often did when values and goals competed. It held that the state could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the court held, a state could not impose a substantial obstacle on a woman’s right to elect the procedure as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.
- The Mississippi law at issue barred abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another state’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States had already passed such laws, in anticipation of the Supreme Court’s ruling. Some states had enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They had passed laws without any exceptions for when the woman was the victim of rape or incest. Under those laws, a woman would have to bear her rapist’s child or a young girl her father’s—no matter if doing so would destroy her life. So too, after the Supreme Court’s ruling, some states could compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. States could even argue that a prohibition on abortion needed make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a state would be able to impose its moral choice on a woman and coerce her to give birth to a child.
- A state could of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States would not stop there. Perhaps, in the wake of the Supreme Court’s decision, a state law would criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas had shown, a state could turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tried to get an abortion, or to assist another in doing so.
- Interstate restrictions would also be in the offing. Some states could block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of state. Some could criminalize efforts, including the provision of information or funding, to help women gain access to other states’ abortion services. Most threatening of all, no language in the Supreme Court’s decision stopped the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happened, the views of an individual State’s citizens would not matter.
- General standards, like the undue burden standard, were ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, the court often crafted flexible standards that could be applied case-by-case to a myriad of unforeseeable circumstances. So, for example, the court asked about undue or substantial burdens on speech, on voting, and on interstate commerce. The Casey undue burden standard was the same. It also resembled general standards that courts work with daily in other legal spheres—like the rule of reason in antitrust law or the arbitrary and capricious standard for agency decision making. Applying general standards to particular cases was, in many contexts, just what it meant to do law.
The judgment of the Fifth Circuit was reversed, and the case was remanded for further proceedings consistent with the majority’s opinion.
Relevance to the Kenyan jurisprudence
The Constitution of Kenya, 2010, in article 26 talks about the right to life when it points out that:
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
Article 27 (3) notes that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
In PAK & another v Attorney General & 3 other, the court held that the violation of sections 158, 159 and 160 of the Penal Code did not accord with the tenets on procedural fairness and fundamental rights clearly stated in the Bill of Rights. The rights embodied in the Bill of Rights on conscience, life, dignity, freedom of choice, security, privacy as grounded conscientiously with reproductive rights behind article 26(4) should be broadly construed so as not to deny the beneficiaries the essentials of humanity. In Nzioki v Republic,the appellant who was a pastor was charged of defiling a minor who became pregnant, refused to procure abortion as the petitioner instructed her and finally dropped out of school.
Dobbs’ case is therefore important since it expands the Kenyan jurisprudence by discussing the rights of abortion as not being part of the fundamental rights.