Lessons on life and liberty from America

In arguably the most consequential and controversial decision of its modern history, Dobbs v Jackson, the US Supreme Court has ruled that Roe v Wade (1973) 410 US 113 was wrongly decided and is overturned. Reactions to the judgment in the UK have mainly been negative, but the case appears to have been largely misunderstood. 

It is important, when people disagree passionately about issues of life and liberty, that the contested positions be addressed and understood, and that developments of such gravity as the overturning of Roe v Wade should not be misrepresented in a reactionary fashion. 

This was not the first time that the future of Roe had been in doubt. In 1992, every constitutional scholar in the United States was braced for the nation’s Supreme Court to overturn Roe, and few expected the decision that was issued in Planned Parenthood of Southeastern Pennsylvania v Casey (1992) 112 S Ct 2791 (discussed further below), upholding the constitutional “right” regarding abortion that had been discovered in the conjoined cases of Roe v Wade and Doe v Bolton in 1973. 

Debate about Roe has mainly centred on the scope of the constitutional right of privacy, founded in Griswold v Connecticut (1965) 381 US 479. In Griswold, which factually concerned contraception, the Supreme Court located this right primarily in the Fourteenth Amendment guarantee that no citizen will be deprived of liberty without due process of law, although initially also inferred it from elsewhere in the constitution. This line of authority includes such matters as the right to raise your children as you determine, and the decision of whether or not to bear children, which (in Eisenstadt v Baird (1972) 405 US 438) was explained as a pre-conception right. 

The key question was whether (or how) this constitutional right extended to the purposive destruction of an unborn child by abortion, and in particular the validity of the Supreme Court’s 1973 decision that to an extent it did, despite constitutional scholars condemning the decision as neither valid constitutional law nor as making any legitimate pretence of being such.

Roe: a three trimester approach to abortion 

Roe v Wade was decided very shortly after Eisenstadt. Justice Harry Blackmun wrote the court’s judgment in a decisive seven to two decision, finding a right not to abortion as such but for a pregnant woman in consultation with her medical advisers to decide in favour of terminating her pregnancy. The court set out a three trimester approach, essentially allowing only limited state regulation in the first trimester such as ensuring the qualification of a doctor, increased regulation in the second that would, for example, serve to protect the health of the mother, and greater regulation with reference to the state interest in protecting pre-natal life in the third. This was heavily criticised on many fronts, perhaps mainly as a form of judicial legislation. 

Despite this, Justice Blackmun himself wrote (at p 180 of Roe) that the pregnant woman cannot be isolated in her privacy; that the situation is inherently different from marital intimacy and so on under Griswold; and that it is reasonable for a state to determine at some point that another interest (be it the mother’s health, or protecting pre-natal life), is significantly involved. The woman’s privacy must be measured accordingly. 

Roe’s dissents questioned its constitutional validity. The above tension between acknowledging the state’s interests, and then imposing on them the “legislative” timeframes, and so on, within which they could pursue them (despite these interests being ever present), was always of concern. 

Chief Justice Burger (concurring in Doe v Bolton), was adamant that the Roe court rejected an unequivocal right to abortion at any stage of pregnancy. He became extremely dissatisfied, after Roe, with a strict application striking down all kinds of state regulations, and in Thornburg v American College of Obstetricians & Gynaecologists (1986) 54 USLW 4618 he was one of four Justices dissenting as the court overturned a range of informed consent, parental consent, second physician and reporting requirements. 

The court in Webster v Reproductive Health Services (1989) 492 US 490 reversed the Thornburg approach, upholding a range of state regulations, the barring of the use of public employees or facilities otherwise than in cases to save the mother’s life, and even a declaration in a state constitution’s preamble that human life begins at conception. Justice Blackmun, dissenting, said the Webster court had discarded Roe “not with a bang, but with a whimper”. 

Casey: affirming a more limited constitutional right 

By the time of the Dobbs v Jackson decision, which has made quite a bang, further and more restrictive state laws had been allowed to stand by the court, to the extent that some questioned what substance of Roe remained. After Webster and until Dobbs, Roe was more than just effectively disregarded: indeed the Planned Parenthood v Casey decision in 1992 overturned much of the contested reasoning of Roe, rejecting its three trimester approach and setting out in the lead opinion a number of errors made by the court in Roe. 

Continuing to surprise the experts, however, the court (in an exceptionally well drafted plurality opinion from Justice Sandra Day O’Connor) maintained what it called the “core” holding of Roe, while (by seven votes to two) upholding five of the six challenged restrictions in the law of Pennsylvania, as not being undue burdens on the (recast) constitutional right. Justice Blackmun concurred and dissented in part, essentially warning that Roe was in mortal peril. 

The court was clear that as a matter of general “fairness”, this afforded the opportunity of abortion where this was sought in the earlier stages of pregnancy. Abortion was acknowledged to be different in kind from the other conduct covered by the right of personal privacy: the states always had legitimate interests in pre-natal life during pregnancy, but only after a certain stage did these become “compelling”, crucially at viability. 

Despite some of the majority Justices finding abortion offensive to the most basic principles of morality, the Casey court said that its obligation was to define the liberty of all, and concluded that abortion intimately affected a pregnant woman who wanted to terminate her pregnancy. It accepted that viability was an unclear legal standard, but said: “Liberty cannot be extinguished for want of a line that is clear”. And it acknowledged that although it could be rationalised in similar ways by incremental reasoning, abortion was different in kind from the other matters covered by the Griswold line of authority, as it involved the destruction of the unborn child. 

The dissenting opinions in Casey, led by Chief Justice Rehnquist and Justice Scalia, suggested that the fundamental nature of the difference in kind between abortion and the other matters legitimately covered by the Griswold line of authority made abortion sui generis, fundamentally different in kind and inapposite to be considered as encompassed by the constitutional right of privacy. 

It has since transpired that the Casey court provisionally voted five to four to overturn Roe v Wade, until a subsequent reversal swung this to a five to four decision upholding a revised version of Roe. 

Dobbs: revising the extent of the constitutional right of privacy 

In Dobbs v Jackson Women’s Health Organization (still to be fully cited; (2022) 597 US) the Supreme Court after oral arguments also provisionally voted five to four to overturn the decisions in Roe and Casey. Justice Samuel Alito was appointed to draft the provisional majority opinion, producing a clear and compelling draft opinion that was sensationally leaked.

Unlike the situation in 1992, there was no compromise to pull the court back to upholding its prior decision, and the US Supreme Court ruled on 24 June 2022 that Roe v Wade, a year short of its 50th anniversary, and Planned Parenthood v Casey were “egregiously wrong” (in terms of the test for overturning a Supreme Court precedent) and were overturned. The US Constitution leaves abortion to the individual states of America, and there is no constitutional right on abortion such as Roe and Casey had held. 

The majority opinion in Dobbs could, unusually, rely heavily not merely on prior dissenting opinions, but perhaps as much on the plurality opinion of the court in Casey, which itself made the critical points distinguishing abortion from the other matters covered by the Griswold line of authority, and on the incoherence of viability as supposedly demarcating when the legitimate state interest in protecting pre-natal human life (always present in pregnancy) was said to have become compelling. 

Justice Alito, writing for the court in Dobbs, narrated that the conduct at issue, on any construction of the abortion question, involves the purposive destruction of the unborn child, whether referred to as its “potential life” or as the law of Mississippi in question in this case had it, the life of an “unborn human being”. In 1973 most states prohibited abortion subject to a defence where the mother’s life was in danger, and all had restricted it in ways overturned by what Justice Byron White, dissenting in Roe, termed (for the Dobbs court, correctly) Roe’s “abuse of judicial power”. Many states wanted to prohibit or restrict abortion still, and the US as amicus had repeatedly (although not in Dobbs) asked the court to overturn Roe. 

The court in Dobbs concluded that respect for and preservation of pre-natal life is a “rational basis” on which states may decide to legislate to control abortion. It found that abortion had never been so rooted in the nation’s history as to be encompassed as a fundamental right; on the contrary the court’s detailed sweep of the relevant history took pains to show that it was conduct largely treated as destructive of life, and although states had taken different approaches to it, it had been regulated or prohibited to protect life. 

Post-Dobbs, the states could allow it, or reach the appropriate balance as they determined, such as providing for risk to the mother’s life.

Stare decisis and further reflections on Dobbs

The majority of Justices in the Casey court appear to have been close to the Dobbs majority on key matters of substance, but the Casey decision relied on the stare decisis rule to pull together a somewhat discombobulated majority, by using the constitutional doctrine that could guard a previous decision even if it were wrongly decided. 

In a strong ruling, the court in Dobbs sets out what it says are the proper tests of stare decisis and explains why Roe (and Casey) could not survive under those circumstances, including the fundamental nature of the errors of the previous decisions. 

The dissent of three Justices in Dobbs is written with a burning “sorrow” that, while genuine, is the same as the opponents of Roe suffered for 50 years of what they considered its burning injustice. In one sense, it maintains the approach of the Casey court, in particular directly adopting its view of the stare decisis rule. On the other hand, the dissenting Justices in Dobbs show Roe v Wade far more respect than the Casey plurality which “upheld” it, and strongly maintain that the matters which underlie contraception and bearing children, and so on (as properly covered by Griswold’s line of authority), do also extend to abortion.

The dissent echoes Justice Blackmun’s sentiment in Casey, in concluding that the Dobbs decision “erases the woman's interest and recognizes only the state's”. Conversely, Justice Alito’s response to the dissent suggests that it makes repeated reference to a woman’s interests without appropriately addressing the state interest in protecting unborn life. Appositely, as Lincoln said, we all declare for liberty, but often we mean different things by it. 

However, it is interesting that the Supreme Court’s decisions from Roe to Dobbs have similarly acknowledged that abortion is inherently different from the other matters covered by the constitutional right of privacy under Griswold, due to its purposive destruction of pre-natal life, and that there can accordingly be no unequivocal right to abortion – although they have spanned such a range of different conclusions, from Roe, to Casey, and then Dobbs. 

Concurring in the Dobbs result that the Mississippi law prohibiting abortion after 15 weeks was constitutional, Chief Justice John Roberts would have left the issue of the constitutional validity of Roe to another day, as he felt Dobbs could have been decided without doing that. In oral argument, he was adamant that the court had initially certified a challenge to the provisions that did not look to overturn Roe, although that argument was allowed to be made when the full case papers were lodged, as it was accepted as a relevant challenge. 

It should go without saying, but everyone should read the Dobbs case, and should read the Roe and Casey decisions; and should do so in the context of the constitutional line of authority of Griswold v Connecticut. 

Coherence in privacy right 

Dobbs v Jackson is viewed as a travesty by some – but arguably that is to misunderstand what may well be the Brown v Board of Education decision of its time (not ending racial segregation, or even abortion for that matter, but overturning a major prior decision that was mistaken as a matter of US constitutional law).

The Dobbs case has arguably made the full Griswold line of authority coherent in substance. For as right as the Supreme Court certainly was to overturn its mistaken decision in Bowers v Hardwick (1986) 478 US 186 (by finding in Lawrence v Texas (2002) 539 US 558 that the right of privacy does extend to homosexual activity in private), the court in Dobbs has found that the right of privacy covers such matters as using contraception and choosing whether or not to bear children, but not abortion. The court’s opinion says that these other authentic aspects of the Griswold line of authority are safe from challenge, and its reasoning is clear that Roe and Casey have fallen because the conduct involved in abortion involves the purposive destruction of life (however that is described) that the other decisions do not. 

Suggestions that the court will target those other matters are thus disingenuous. Justice Clarence Thomas’s concurring judgment would have done so (on the view that the Due Process Clause of the Fourteenth Amendment only ever referred to procedural and not substantive matters), but there is now no serious question of that. 

Equally, suggestions that the US Congress could “codify” Roe into law are incorrect, as the Dobbs decision confirms that Roe is unconstitutional and that this is a matter for the states. 

Reactions in the UK

As such, the main reaction to Dobbs that could impact our laws (first at UK level, with some MPs suggesting the enshrining of a “right” to abortion in the draft Bill of Rights) could be as misguided as the Roe decision that has been overruled. 

In the UK, the criminal law prohibits abortion as a crime punishable by life imprisonment, but the Abortion Act 1967 purports to allow it in certain circumstances (without disturbing the criminality of abortion per the primary legal rules). In reality the Act’s purported limits are not adhered to, effectively allowing abortion so permissively before 24 weeks that the law protecting the life of the unborn child is in fact emasculated.

But the law’s protections are significant in principle as well as in reality. Just as there is now no right of or to abortion under the US Constitution (and the individual states will look at how to balance the protection of pre-natal life with the interests of those facing unwanted pregnancy), there cannot be an unequivocal right to it in UK law without raising the meaning of liberty (and under it, privacy) to such an extent that they are absolutised, so that the protection of human life which naturally exists (although not as yet ascribed legal personality, as a child has been conceived but as yet is unborn) cannot be achieved.

European human rights law is complicated in this respect, and it allows states to take approaches that can range from allowing abortion as a lightly qualified “right”, to protecting the right of life of the unborn child subject to exceptions for the mother’s life including serious risks to her health. Arguably every articulation of a position on this has been problematic, perhaps because, as with the US Constitution, the European Convention does not give the answer. (By contrast, the American Human Rights Convention still has more definitive provisions on human life being entitled to protection from its beginning.)

Life and liberty

All of us should consider justice as involving the balancing of interests that where possible looks less like one side trumping the other – subject to the gravity of the interests being balanced and (where life is being taken) a sufficiently grave defence being satisfied in exceptional circumstances. 

Liberty is ultimate more than it is truly absolute. Isaiah Berlin wrote that it is necessarily limited, else the protection of weaker lives or minorities be overridden (indeed, he said, total liberty for the powerful would mean death to the weak and power-less). So, liberty cannot be absolute, but some portion of human existence (a “minimum area of personal freedom”, which cannot be given up without offending the essence of human nature) must remain independent of social control (The Proper Study of Mankind, Pimlico (1998), 172-173).

The worry of some, and hope of others, is that where the US leads, others will follow, and in one way or another that is likely to be true. But as the tug of war continues in America, the Dobbs case deserves consideration as being what it claims: the proper articulation of US constitutional law, and the correction of the very important Griswold line of authority.

It should serve America and the world best, in openly and honestly considering the proper limits of liberty, to deny an extensive “right” to purposively destroy unborn life, and to recognise the state’s interest in protecting it, while doing everything the state and we as individuals can to promote the legitimate rights of all people to decide (pre-conception) whether or not to bear children, and to help and support those who are distressed at pregnancy, and concerned about its consequences, without considering killing unborn children to be an absolute right or solution.