Roe v. Wade: a tale of upsetting checks and balances

Colin Stewart ’22

I got a text from a classmate. 

“Check out what a little birdy just dropped on my desk,” he said. A rough draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) followed.

All homework plans went out the window (Sorry, Mr. Tryon, Ms. Cleffi, and Mr. Maley). I spent that evening reading the entirety of the 98-page decision while intermittently surfing the web for articles, flipping through similarly passionate yet ideologically opposite news channels, and responding to the onslaught of texts that attacked my phone.

I was and still am morally split on abortion, but, as a constitutional matter, I believe the Court got it right.

This article seeks to cover a few different topics. First, I will explain the opinion, particularly in relation to the cases it overturns, and what I think about it. Second, I will respond to the critiques of Justice Alito’s opinion. Finally, I will talk about the leak and its impact. A common tie that you will find in Roe v. Wade (1973),  Casey v. Planned Parenthood (1992), the Dobbs’s leak, and the reaction to the leak is one of upsetting checks and balances.

While abortion is an important issue, this article neither discusses abortion as a moral issue or opines on the morality of abortion.

“We hold that Roe and Casey must be overruled.” – Dobbs v. Jackson Women’s Health Organization (2022). In no ambiguous terms, the majority made their stance clear: Roe and Casey are bad jurisprudence. Justice Alito, one of six originalists on the Court, used two general standards for his analysis. The first is quite obvious: “Is there any explicit mention of abortion in the Constitution?” The second is if the right to an abortion is protected by the Due Process Clause.

This clause offers two forms of protection: substantive due process and procedural due process, the former being the one in question. The standard for substantive due process protection is as follows: the right must be “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997).

The originalist-living constitutionalist schism is not found in the first question–there is no dispute: the Consitution does not explicitly mention abortion–or in the type of due process protection aborition is protected by. The two diverge in whether abortion meets the standard for substantive due process.

Living constitutionalists ardently stand by Roe; originalists repudiate their reasoning.

Roe argues that the first abortion laws emerged at the turn of the nineteenth century. In the seven-justice majority opinion, Justice Harry Blackmun followed a quasi-history, finding that, as abortion laws initially emerged, distinctions were made based on the circumstance and, that up until the few decades preceding Roe, abortion had largely been accepted under certain circumstances.

Official 2007 portrait of U.S. Supreme Court Associate Justice Samuel Alito – Steve Petteway via Wikimedia

The Court used precedent under the 1st, 4th, 5th, 9th, and 14th Amendments to argue that there is an inherent right to privacy in the Constitution, though not explicit, which is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” –Roe v. Wade (1973). So, Roe created a trimester-based viability framework that balances a woman’s right to privacy and the states’ interest in protecting “potential life” to substantiate the “ordered liberty” requirement. Thus, while Roe does not give absolute abortion rights, it argues that the right to abortion is both enshrined in history and tradition and necessary to ordered liberty. 

While Casey overturned the trimester framework and replaced the strict scrutiny standard of review established in Roe, it upheld Roe’s central holding: that aborition is protected by the Due Process Clause. 

Originalists take issue with both conclusions reached in Roe. Justice Alito argues that not only is neither standard met in Roe but that the 1973 case is lax in its jurisprudence: “Roe was ‘not constitutional law’ at all and gave almost no sense of an obligation to try to be,” and  “its messages seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance” – Dobbs v. Jackson Women’s Health Organization (2022) [original emphasis].

At the time of Roe’s deciding, 30 states explicitly outlawed abortion at all stages, no state constitutional provision or federal court had recognized any constitutional protection for abortion…

First, Alito traces back the history of statues outlawing abortions to the thirteenth century, half a millennium before Roe first finds it. The majority opinion then follows the more accurate of the histories: while abortions before the first sign of life were never explicitly illegal, some abortions laws included limited exceptions, and few states either allowed or had no legislation governing abortion. American history and tradition  is aggressively anti-abortion.

In fact, at the time of Roe’s deciding, 30 states explicitly outlawed abortion at all stages, no state constitutional provision or federal court had recognized any constitutional protection for abortion, and, up until 1968—only five years before Roe—there was no written assertion that the Court could find that argued abortion is a protected right.

As far as the ordered liberty standard for the substantive due process protection, Justice Alito argues that Casey—which, for these purposes, can be treated as merely an extension of Roe—violates the checks and balances relationship between the states and federal government. Casey’s argument that the right to abortion satisfies the ordered liberty requirement—the concept that personal liberty and state’s interests must be balanced—is as follows: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” – Casey v. Planned Parenthood (1992).

Justice Alito then points out Casey’s inherent flaw: not only are individuals not allowed to act absolutely on their concept of existence, meaning, and so on, but the fact that each person’s concept of these ideas varies so wildly lends the question of abortion to a legislative body, not a court.

I agree wholeheartedly with Justice Alito’s reasoning. Roe and Casey are, perhaps, the most prominent examples of judicial activism. The justices, under the veil of living constitutionalism, decided based on personal policy preferences, providing a quasi-history and self-defeating concept of ordered liberty to substantiate their decision.

Roe and Casey embody the larger criticism of living constitutionalism. The American Constitution is inherently constructed not to evolve with the times but rather to enshrine permanently the values upon which the country was founded. Thus, the Constitution created a process designed to provide that necessary societal progression: the legislative branch that can make laws and amend the Constitution. Originalists argue that it is the legislative body’s responsibility to account for the current social and cultural contexts, not the judiciary’s.

By overturning Roe, and therefore Casey, the Court is not taking a policy stance as it did in Roe and Casey—which was a policy decision determining when a state’s interests begin to take priority over a woman’s. What the Court did do was return each state’s right to decide its laws considering the social and cultural context within each state.

By nature, it is ironic that the largest criticism of the draft opinion has been that it is undemocratic or authoritarian. In fact, by its very nature, the Court has taken power out of the hands of the few, nine justices, and returned it to the roughly 245 million Americans of age to vote.

A similar critique follows: the Court did not represent the wider public opinion in its decision. Those who say this fail to understand that the Court is meant to be insulated from public opinion, a point that will be further developed later in this article. It would be awfully disastrous if the scholarly task of interpreting the Constitution was put into the hands of the people, the vast majority of which have never read the entire Constitution. There is a reason the public elects representatives in the form of legislators and executors and does not elect the federal judiciary. In fact, it is obvious in a checks and balances system that the opinion of Americans should play no role in the federal judiciary’s decisions.

Finally, the very desire for something to be a right is not in and of itself a reason for its constitutionality. As much as one might want universal healthcare, universal housing, and, yes, abortion to be gaurenteed rights under the Constitution, they are not unless Congress and the President amend it.

While some critiques rely on forcing an electoral mindset onto the judiciary, others have operated within the legal world to criticize Justice Alito’s scathing repudiation.

The first is stare decisis: a legal principle that asserts that cases should be decided according to precedent in most circumstances. If stare decisis were to be adhered to in the absolute, like many are calling for, we must also say goodbye to Brown v. Board of Education (1954) or Skinner v. Oklahoma (1942) to name a few, the former outlawing segregation and the latter outlawing forced sterilization as a punitive measure.

This body in not a political battlefield sign at a Stop Abortion Bans Rally in St Paul, Minnesota- Lorie Shaull via Wikimedia Commons

In fact, Justice Alito in a footnote gives twenty-five different examples of the Court overturning past precedent like Plessy v. Ferguson (1896), Dred Scott v. Sandford (1857), and Koramatsu v. United States (1944), and replacing it with a new interpretation. The fact that many a progressive is arguing for strictly adhering to the past as opposed to constant change aimed at perfecting the statute book is, to me, crazy. 

Others have looked to Justice Alito’s elicitation of thirteenth-century treatises as a reason why the Court is broken; “just another conservative originalist trying to drag America back to the past” some might say. Not only is this opinion uninformed but, quite frankly, hilarious. The standard for substantive due process protection requires that the Court look for a “deeply rooted … history and tradition” – Washington v. Glucksberg (1997). This means that not only is it necessary to prove this history and tradition to overturn Roe, but it was necessary when Roe was decided. In other words, Roe looked back to the past even farther than Justice Alito did. All the way back to Ancient Persia.

Lastly, some have stated that this decision, if it ultimately comes to fruition, would put other Due Process Clause cases at risk of overturning, as Dobbs would provide a basis upon which to do it. Justice Alito explicitly mentions this critique: “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty,’” and “Roe’s defenders characterize the aborition right as similar to rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different.”

To say that by overturning Roe and Casey puts all Due Process Clauses cases at risk for overturning is to ignore the many considerations that go into deciding whether the standard for substantive due process protection is met.

For example, Obergefell v. Hodges (2015) and Loving v. Virginia (1967), both cases that protect marital rights under the Due Process Clause—the former same sex and the latter interracial—have wildly different analyses of their “deeply rooted” history and tradition than that of an abortion case. To say that by overturning Roe and Casey puts all Due Process Clauses cases at risk for overturning is to ignore the many considerations that go into deciding whether the standard for substantive due process protection is met.

Many of these critics would also support the nationwide protests against the Dobbs decision. These protests not only upset the checks and balances and are, in some cases, illegal, but were likely the intended result of the leaker.

There are two possibilities that I see for the leak, both of which intentionally upset the checks and balances and intend to elicit illegal protests. I know “illegal protests” is a controversial statement (to understate it), but stick with me.

The first possibility is a liberal leak. Their intention would be to leverage public opinion against the justices to get them to switch their vote and rile the Democratic voter base to counteract the slaughter that many pollsters on both sides of political spectrum have predicted for the 2022 midterms. The second is a conservative leak. Their intention would be to solidify the current vote, knowing that if any change in the tally were to happen it would be attributed to the public pressure put on justices, therefore calling the legitimacy of the decision into question.

It does not matter for these purposes what aisle of the political specturm the leak is on; both would have leaked the document to elicit public outcry from the pro-choice set. The public outcry that unavoidably came was ruthless, and continues to be. Nationwide, protests have erupted locally and nationally. While these protests should not be happening in the first place, they lack a personal connection; they are people the justices do not know protesting hundreds if not thousands of miles from D.C..

The protests that I take problem with are the ones outside the homes of the originalist justices, namely Chief Justice John Roberts and Justice Samuel Alito

The protests that I take problem with are the ones outside the homes of the originalist justices, namely Chief Justice John Roberts and Justice Samuel Alito. By going to the house of the justices, the protesters introduce a level of threat that is very real for the justices, especially when many of their houses now have round-the-clock police barricades.

Considering the new level of threat introduced, 18 U.S. Code § 1503 (a)(3)- “Influencing or injuring officer or juror generally” also challenges these protesters actions: “Whoever corruptly, or by threats or force … endeavors to influence, intimidate, … any … officer in or of any court of the United States … in the discharge of his duty … shall be punished [with] … imprisonment not more than 10 years.” It is hardly a stretch to say that protesters separated from the justices’ houses by armed police officers do not pose some sort of threat and do not in any way seek to influence or intimidate their decisions.

Come June, who knows. This article could all be for nought. I could be writing an article that argues for the dissenting opinion in Dobbs. I guess we will have to wait.

But the true takeaway from this article is not substantive due process of 13th century treatises; it is the broader context through which one must start considering legal and political issues: checks and balances. When one looks at the checks and balances created by the Constitution—the constitutional interpretation based on checks and balances is structuralism—they will, hopefully, find a sense of clarity within the political and legal context through which they view issues. Rather than frustrating over a decision they do not like, one might realize their place within the broader structure; one might realize the proper and improper ways of obtaining governmental change; one might discover a path to being not only a better citizen but a better thinker and, thus, a better human being.