Dobbs v Jackson: the rediscovery of judicial humility

In the Seinfeld episode, “Poppy”, Jerry and Elaine are set to enjoy a delicious meal of succulent duck at Poppy’s famous restaurant, when Elaine says how pleased she is not to be eating at another restaurant because it is operated by “anti-abortionists.” This prompts Jerry to call Poppy over and to inquire about his stance on abortion.

It transpires that Poppy himself is opposed to abortion and he claims that no one has a right to abortion. This prompts Elaine to say that she has this right and that her right comes from “the Supreme Court of the United States.” As a result of the exchange Elaine -- and some other diners -- insist on leaving the restaurant, whilst others affirm their support for Poppy’s position.

The exchange is an example from popular culture of the continued debate over abortion in the United States nearly 50 years after the Supreme Court of the United States (SCOTUS)’s decision in Roe v Wade. In that 1973 decision SCOTUS found a hitherto unnoticed and unwritten constitutional right to abortion operative across the entirety of the United States.

The exchange in this Seinfeld episode demonstrates Elaine’s recognition of the moral authority of the law, which is a central feature of the Western legal tradition. In this tradition, law has moral authority because it is law, and a decision of a nation’s highest Court is clearly that. This feature of the Western tradition becomes ever more significant as religiosity as a source of morality declines.

Notice that Elaine did not seek to ground the “right” she asserted to Poppy on any persuasive argument or on reason, or even on the United States’ Constitution itself -- the fact that the Supreme Court has said that such a right exists is enough of an argument for her. In Dobbs v Jackson Women’s Health Organisation (Dobbs), the same court that gave this right has now found that no such right exists in the Constitution and returned power over the issue to the States.

What is the role of SCOTUS in interpreting the Constitution?

Before discussing the decision in Dobbs, it is useful to start with first principles and consider the proper role of a Court called upon to interpret a nation’s constitution.

A Court exercising this power is engaged is a very serious exercise. The constitution of a country sets out the basic law and principles of the nation and how power will be separated between executive, parliamentary and judicial branches. Where the country is a federation, the constitution will also say how power will be divided between Federal and State governments. Those engaged in the drafting have engaged in a debate and ultimately determined what to include and what to exclude from the constitution which has then been ratified.

Typically, a constitution can be considered to be a “super statute” because it is superior to other laws and invalidates conflicting laws. It is stable, because it is more difficult to alter than other legislation, and it is justiciable, which means that a court can be asked to rule on constitutionality of legislation.

Constitutions derive their power from the people, and they enjoy this superior status because their creation is not akin to that of ordinary legislation. The US Constitution, for example, was the result of discussion, debate and vote by delegates selected by the then States. On September 17, 1787, 39 of the 55 delegates signed the document which would become the Constitution after the process for its ratification had concluded. This process involved popular debate in the States and required ratification by at least 13 of the State legislatures then forming the union. The Constitution was ratified by Delaware on December 7, 1787 and by all of the then extant States by May 29, 1790.

The US Constitution itself sets out the method for its amendment. This requires that an amendment be proposed by a two-thirds vote of both Houses of Congress. An amendment can also be proposed via a convention called for by two-thirds of the States. Three-fourths of the State legislatures, or three-fourths of conventions called in each State must then ratify the change. Since the original ratification of the Constitution it has been amended 27 times.

The Constitution and the amendments which have been made to it ultimately derive their power from the people. Whilst the power to resolve disputes about the Constitution ultimately resides in SCOTUS, the judges of that Court are not elected by the people, come from few places, have less diverse backgrounds, education and experiences, and are far fewer in number than the representatives of the people elected to the State or Federal parliaments.

It must be tempting for judges in superior courts -- particularly when faced with parliaments unwilling or unable to address social issues -- to use their power to insert rights into constitutions, and particularly where they are clear that doing so will be in the public interest. This appears to be what happened in Roe v Wade in which,the Court found a right to abortion existed in the Constitution.

Yet it is impossible to conclude that anyone involved in the drafting or ratification of the Constitution or amendments to it could have considered that they were creating any such right. In identifying such a right, the Court was involved in an exercise of judicial legislation as the minority judges -- and others -- pointed out at the time.

What happened in Dobbs?

In Dobbs, SCOTUS found that the 1973 decision in Roe v Wade was “egregiously wrong”. This is because it found that the right that the Court there found was not expressly set out in the Constitution and had no grounding in its provisions. The Court found that for a right to be protected by the Constitution, where it was not expressly protected, it was necessary to show that the right was “deeply rooted in the nation’s history and tradition.”

The Court reviewed that history and demonstrated that Roe v Wade had made historical errors and considered irrelevant factors in coming to its conclusions. As a result, it found that there was no constitutionally protected right to abortion in America; the question of the regulation or proscription of abortion was properly a matter for the state legislatures and ultimately the people of each of the states of the union. Proponents of the right could also seek to amend the Constitution to include such a right if its inclusion were as popular across the nation as some appear to believe.

Since the decision in Dobbs, the Executive and Parliamentary branches of the United States’ Government, as well as the President, Vice President and Senior Democrats including Nancy Pelosi, have been direct and scathing in their criticism not just of the decision but of SCOTUS itself. For example, President Biden claimed recently that Dobbs threatened American prestige and power internationally:

“… [O]ne thing that has been destabilising [for America] is the outrageous behaviour of the Supreme Court of the US in overruling not only Roe v Wade, but essentially challenging the right to privacy.”

Whatever view one might take of the decision in Dobbs, it is right to be concerned about such criticisms of the judicial branch by those two branches of government, particularly in such direct and evocative language by experienced politicians.

What does Dobbs mean for the right to privacy and to decisions founded in whole or on part on that right?

The criticism made by the Dobbs’ majority of Roe v Wade about the lack of historical foundation for the right to abortion created by SCOTUS in Roe v Wade, might rationally be levelled against other such rights identified by SCOTUS in other cases before and after the Roe v Wade decision. These include the right to contraception and to same-sex marriage.

In his claim that the Dobbs’ court is “essentially challenging the right to privacy” President Biden is not giving a fair analysis of the majority judgment. The Dobbs’ Court very clearly distances its decision from those cases because it says that abortion is different.

The difference is that contraception and same-sex marriage are not rights which have the same impact that abortion has. Those rights do not involve the destruction of “the potentiality of human life.” Indeed, the Mississippi legislation under consideration in Dobbs described abortion as “a barbaric practice, dangerous for the maternal patient and demeaning to the medical profession.” Clearly that view will not be as shared by all but it is the view of the elected officials of one State in the union.

For those who are ideologically committed to supporting abortion, seeing abortion only through the lens of women’s rights and unable to recognise that there may be legitimate moral concerns about the practice of terminating what for some is a human life deserving of protection, this distinction may seem to be ethereal and unpersuasive.

But for those who consider that human life begins at conception or at some stage of development earlier than viability, the distinction the Court draws here is clear, at least where contraceptives do not have an abortifacient effect. However, it is not an entirely satisfactory part of the decision, particularly given it is a decision focusing on errors in earlier decisions considered so egregious as to warrant their overturning long after they were decided.

Whatever the strengths of the reasoning on this front, the majority of the Court has made its position on this clear. It is overturning Roe v Wade and Casey because they were egregiously wrong, but they have not resolved the issue of abortion, which remains deeply contested in the United States (and the reaction to the leaking of the majority decision and of the official judgement clearly bears that out).

Abortion does not solely impact on women experiencing unplanned or unwanted pregnancies; it involves questions beyond the scope of the Supreme Court, which are not addressed in the Constitution and should be left to the states.

The reasoning in Dobbs clearly suggests that the present majority of SCOTUS will not easily be persuaded to identify rights which are not clearly expressed in the words of the Constitution. As a consequence, the legislative branch of governments across the United States may find themselves having to resolve more contentious moral and social questions for themselves rather than leaving them for SCOTUS to deal with.


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