Understanding the DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION decision against abortion rights
Since the recent U.S. Supreme Court decision[1] on abortion rights, questions have been raised about the reasoning and arguments used by the justices.
What are the facts behind the litigation?
In March 2018, Jackson Women’s Health Organization, the only abortion clinic in Mississippi, filed a lawsuit against Thomas E. Dobbs, the local public health administrator in the Mississippi Department of Health, over a local law banning abortion after the 15th week of pregnancy.
The lower courts blocked enforcement of this law with a preliminary injunction. Subsequently, Thomas E. Dobbs appealed to the U.S. Supreme Court.
The Supreme Court justices, by a 6-3 majority, upheld the law and overturned[2] Roe v. Wade[3], which guaranteed constitutional protection of the right to abortion and prevented states from banning it, in order to give the people and their elected representatives a choice as to the applicable law.
The « stare decisis » rule
In principle, courts in the United States are bound by the « rule of precedent, » also known as « stare decisis, » which is the doctrine that courts rely on prior case law in making their decisions.[4]
Although courts rarely overrule prior case law, the Supreme Court has explained that stare decisis is not an « inexorable commandment. »[5] When prior decisions are « inapplicable, » the court must apply them. Where prior decisions are « unworkable or poorly reasoned, » the Court may not follow prior case law.
The Foundations of Abortion Rights Prior to this overturn
The foundations of abortion rights are found in two Supreme Court decisions, Roe v. Wade of 1973 and Planned Parenthood v. Casey[6] of 1992, in which the Supreme Court justices interpreted the Ninth and Fourteenth Amendments of the Constitution to grant such a right.
In Roe v. Wade, the justices declared that the U.S. Constitution protects a pregnant woman’s freedom to choose to have an abortion and struck down federal laws prohibiting abortion.
As for Planned Parenthood v. Casey, this decision prevented states from prohibiting abortion before fetal viability, usually in the first 24 weeks, on the grounds that the choice to have an abortion during this period is guaranteed by the right to privacy under the Fourteenth Amendment to the U.S. Constitution.[7]
Since these rulings, the right to abortion has been constitutionally protected under the Ninth Amendment as one of the rights of persons not expressly enumerated in the Constitution.
The principle of originalism, an approach adopted by the Court
Of all the possible principles of interpretation, the Court relies on the principle of originalism[8], which asserts that the U.S. Constitution must be interpreted as it was proclaimed. Indeed, this approach emphasizes the intent of the Founding Fathers of the U.S. Constitution in order to understand their « original intent ».
In this state of affairs, a right not enumerated in the Constitution must be « deeply rooted in the history and tradition of the Nations » in order to be protected at the constitutional level.
According to Supreme Court Justice Samuel Alito, abortion was not firmly accepted then and therefore cannot be considered as such today. Even though this right derives from the Ninth[9] and Fourteenth[10] Amendments, the majority of the justices held that such a right did not exist in the eighteenth century and therefore it should not be protected by the Constitution.
[1] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
[2] Avec une majorité de 5-4.
[3] https://supreme.justia.com/cases/federal/us/410/113/
[4] https://www.law.cornell.edu/wex/stare_decisis
[5]Pearson v. Callahan, 555 U. S. 223, 233
[6] https://supreme.justia.com/cases/federal/us/505/833/
[8] https://fr.wikipedia.org/wiki/Originalisme
[9] https://constitution.congress.gov/constitution/amendment-9/#:~:text=The%20enumeration%20in%20the%20Constitution,others%20retained%20by%20the%20people.
[10] https://constitution.congress.gov/constitution/amendment-14/
