Commentary
If you filter out the noise, lawmakers and legal minds have long acknowledged the foundational problems with Roe.
All eyes have been on the Supreme Court since Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked in May. Since then, both sides of the aisle have been preparing their troops for a media war as the country anxiously awaited the final majority opinion addressing the Mississippi abortion law.
While the media depicts Dobbs as outrageous for overturning Roe v. Wade, legal experts see it as a course correction, returning decision-making authority to the states, where it always belonged in the first place. Last week, the Supreme Court released its decision on Dobbs and overturned Roe and its progeny.
Dobbs compellingly reflects what many on both sides of the abortion discussion have said about Roe for decades—it was a poorly written decision unmoored from the Constitution’s text. Indeed, the late Justice Ruth Bader Ginsburg stated that Roe was an example of how “[d]octrinal limbs too swiftly shaped ... may prove unstable.” Justice Alito’s opinion quotes the infamous, pro-choice Harvard constitutional law professor Laurence Tribe, who criticized Roe’s reasoning for decades on similar grounds.
Dobbs largely memorializes the concerns the Justices conveyed during oral argument. Justice Clarence Thomas asked those opposed to the Mississippi law restricting abortion to states where a right to abortion was in the Constitution, particularly because the reason for the supposed right has shifted from a privacy interest to a liberty interest in bodily autonomy through the years. No real or reasonable answer was delivered. Justice Brett Kavanaugh approached the case by asserting the Constitution was silent on the issue of abortion, which means, by default, the states should individually decide their own laws on the subject.
As the former attorney general for the State of Florida, I agree that the holding in Dobbs and the court’s reasoning aligns with our constitutional framework. Every state sets its own rules on a wide range of matters relating to health care, education, policing, taxes, and other issues, with each election cycle affecting how the state chooses to conduct its affairs. For this reason, the phrase “laboratories of democracy” has been employed by the Supreme Court to recognize the freedom of the states to enact laws specific to their needs.
While the mainstream media and lawmakers attempt to use this ruling to widen divisions in our country, a more advisable course is to examine the legal principles in the Court’s opinion:
- First, Dobbs does not make abortion illegal. Rather, as Justice Alito wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The states will decide the permissibility or limitations of the abortion question.
- While the Court follows precedent, or the doctrine of stare decisis, it explains its greater obligation to decide cases based upon the text of the Constitution. Therefore, the Court will, where it must, overturn decisions that are “egregiously wrong.” According to the Dobbs majority, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and [Planned Parenthood v.] Casey have enflamed debate and deepened division.”
- And, lastly, the Court noted on four occasions that abortion was a profound and fundamental “moral question.” Accordingly, the people, not unelected judges, are entrusted to address that fraught issue.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
