Post-Dobbs Abortion Litigation Under Federal and State Constitutional Law
Bioethics in Law & Culture Summer 2022 vol. 5 issue 3
Carolyn McDonnell, M.A., J.D.
Americans United for Life
After nearly half a century, the Supreme Court has overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, and returned the abortion issue to the democratic process. In Dobbs v. Jackson Women’s Health Organization, the Court unequivocally announced:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
Although Dobbs is a cause for celebration in the pro-life movement, the fight for human life is not over. Not all states protect prenatal human life. At the time of Roe’s overturn, twenty-one states protected human life at conception or the first detection of fetal heartbeat. Six states had laws protecting unborn children only after five months of pregnancy. Twenty-three states plus the District of Columbia, however, permitted abortion through fetal viability or throughout pregnancy.
Constitutional litigation over abortion also has not ended. Although the United States Supreme Court recognized the federal Constitution does not protect abortion as a purported fundamental right, abortionists have filed a flurry of lawsuits in state courts, seeking to concoct new state constitutional abortion “rights.” From these legal challenges, state courts may adopt litigation standards that are favorable to abortionists. This article examines the Dobbs decision and its effect upon abortion litigation under federal and state constitutional law.
In 1973, in a stroke of unparalleled judicial activism, the United States Supreme Court in Roe first contrived a “right of privacy . . . broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In 1992 in Casey, the Court clarified that rather than a broad “right to privacy” unmoored to any specific constitutional provision, abortion was part of the “liberty” interest protected by the Fourteenth Amendment substantive due process right, and reaffirmed the right to a pre-viability abortion as “the most central principle of Roe v. Wade.” Accordingly, the Supreme Court crafted the “undue burden” standard to analyze the constitutionality of abortion regulations. The test was a “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Under this constitutionally untethered abortion “right”, abortionists challenged Mississippi’s Gestational Age Act, which limits abortions after fifteen weeks’ gestation to medical emergencies and cases of severe fetal disability. After a district court and the Fifth Circuit Court of Appeals held the Act was an unconstitutional ban on a woman’s right to a pre-viability abortion, the Supreme Court agreed to hear the case to resolve the question “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” Dobbs not only implicated Casey’s undue burden standard, which relied upon an arbitrary viability line, but also Roe’s legitimacy in fabricating abortion as a constitutional right.
Dobbs Majority Opinion
On June 24, 2022, the Supreme Court issued its landmark ruling in Dobbs. Justice Alito authored the opinion of the Court, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court “hold[s] that Roe and Casey must be overruled,” declares the majority opinion, and accordingly “return[s] the issue of abortion to the people’s elected representatives.” As the Court recognizes, “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 Casey have enflamed debate and deepened division.”
The Court addresses “Casey’s bold assertion that the abortion right is an aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” The Due Process Clause protects rights guaranteed by the first eight Amendments, and, at issue in Dobbs, unenumerated fundamental rights. The Court must “ask whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” As part of this analysis the Court must “engage in a careful analysis of the history of the right at issue.” Yet when the Court “engage[s] in that inquiry [regarding “liberty” in the Fourteenth Amendment] in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”
The majority then considers the legal history of abortion, concluding that “Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” Legal history at both common law and in the United States criminalized abortion. Citing its well-researched appendix of 19th century abortion laws, the Court notes:
By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. . . . Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.
As new states entered the Union, “[a]ll of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico).” “By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother.’” Accordingly, “[t]he inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
The Court next examines whether “the abortion right is an integral part of a broader entrenched right.” In its “mystery passage,” Casey had stated “[a]t 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.” The Dobbs Court rebutted this statement, summarizing that “[w]hile individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts.” “Ordered liberty sets limits and defines the boundary between competing interests.” Roe and Casey had arbitrarily drawn a line between the interests of a woman seeking an abortion and the interests in prenatal human life. States may seek to draw different lines between these interests.
The Court continues, “[n]or does the right to obtain an abortion have a sound basis in precedent.” Cases involving marriage, contraception, and child-rearing are inherently different from abortion. “Abortion destroys what [Roe and Casey] call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” Accordingly, contrary to the dissent’s assertion, Dobbs does not call into question precedents such as Griswold v. Connecticut, Eisenstadt v. Baird, Lawrence v. Texas, or Obergefell v. Hodges. Finally, although “[b]oth sides make important policy arguments,” abortion proponents have failed to show how the Supreme Court has authority to weigh those arguments.
Roe and Casey failed the Supreme Court’s five-factored stare decisis analysis. First, comparing abortion jurisprudence to Plessy v. Ferguson, in which the Supreme Court instituted the racist “separate but equal” doctrine,” the Dobbs Court found “Roe was also egregiously wrong and deeply damaging. . . . Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Second, as the Court recognized, “[Roe] was more than just wrong. It stood on exceptionally weak grounds [in its legal reasoning].” Third, abortion jurisprudence was unworkable and led to conflict in the Supreme Court and Federal Courts of Appeals in how to interpret Casey’s undue burden standard. Fourth, the cases created an “abortion distortion,” in that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” Finally, abortion does not implicate traditional reliance interests, which “arise ‘where advance planning of great precision is most obviously a necessity.’”
The Court then analyzes the impact Dobbs will have on the public perception of the Supreme Court. Justice Alito recognizes “that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.” Nevertheless, “[the Court] cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
The majority affirms that simple rational basis review is the appropriate litigation standard for abortion lawsuits. “[T]he States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’” “A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’” Mississippi’s Gestational Age Act easily passes muster under rational basis review.
The Court’s majority concludes:
Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
Justice Thomas’ Concurrence
Concurring in the opinion, Justice Thomas agrees “there is no constitutional right to abortion,” but writes separately to highlight the flaws he finds in substantive due process jurisprudence. The Justice describes substantive due process as “an oxymoron that ‘lack[s] any basis in the Constitution.’” “[T]he Due Process Clause at most guarantees process . . . . The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
Justice Thomas agrees with the other members of the majority that abortion is unique and does not implicate other substantive due process jurisprudence, such as Griswold, Lawrence, and Obergefell. Accordingly, “‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’” However, the Justice urges the Court “in future cases [to] reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Justice Thomas notes the Court should consider whether those rights have textual support elsewhere in the Constitution, such as in the Privileges or Immunities Clause, but the Court would also need to establish “whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.” Regardless, “abortion is not [a right] under any plausible interpretive approach [of the Constitution.]”
Justice Kavanaugh’s Concurrence
Justice Kavanaugh, concurring in the opinion, writes separately to highlight the Constitution’s neutrality towards abortion and the Court’s role in maintaining this neutral position. The Justice recognizes “[a]bortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life.” Throughout pregnancy, abortion policy weighs one interest over the other.
While the Court “has held that the Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” Justice Kavanaugh rejects the notion that abortion fits within this description. The Justice also rejects the argument, as espoused by some amicus briefs, that the “Constitution outlaws abortion throughout the United States.” Instead, the Justice calls for the Court to be “scrupulously neutral” so as not to disrupt the democratic process by revoking the vote of the people in matters about which the Constitution is silent. According to Justice Kavanaugh, “the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral.”
Chief Justice Roberts’ Concurrence in the Judgment
Chief Justice Roberts concurred in the judgment, agreeing with the majority that Mississippi’s fifteen-week gestational limitation is constitutional, but disagreeing with their decision to overturn Roe and Casey. The Chief Justice recognizes “the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense.” However, under principles of judicial restraint and stare decisis, he would maintain the underlying abortion right.
The Chief Justice details the arbitrariness of Roe’s litigation standard: “Roe set forth a rigid three-part framework anchored to viability, which more closely resembled a regulatory code than a body of constitutional law. That framework, moreover, came out of thin air.” He notes the parties in Roe and Casey had not extensively briefed the viability issue, and “[i]t is hardly surprising that neither Roe nor Casey made a persuasive or even colorable argument for why the time for terminating a pregnancy must extend to viability.” “Roe’s defense of the line boiled down to the circular assertion that the State’s interest is compelling only when an unborn child can live outside the womb, because that is when the unborn child can live outside the womb.” Casey’s justification of the viability line was hollow, and “the best defense of the viability line the Casey plurality could conjure up was workability.”
Roberts summarizes that “the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate.” Furthermore, he notes that only a handful of countries permit elective abortions after twenty-weeks’ gestation, including North Korea and China.
After dismissing the viability standard, Roberts proceeds to defend Roe’s underlying holding. He first criticizes the Court for considering an issue that was not part of the original grant of certiorari. “Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” The Chief Justice notes that the Court should not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
Next, Chief Justice Roberts attempts to resolve the viability issue while still protecting Roe’s essential holding. He would institute a new “reasonable opportunity” litigation standard that reviews whether an abortion law “provid[es] an adequate opportunity [for a woman] to exercise the right Roe protects.”
The Chief Justice concludes his concurrence by critiquing both the majority and the dissenting opinions, stating, “[b]oth the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share.” Accordingly, Chief Justice Roberts agrees to overturn the arbitrary viability line in upholding Mississippi’s fifteen-week limit, but would not overrule Roe and Casey.
Justices Breyer, Sotomayor, and Kagan’s Joint Dissent
Justices Breyer, Sotomayor, and Kagan penned a joint dissenting opinion. Providing an overview of the holdings and legal reasoning of Roe and Casey, they emphasize the “balance” that Casey’s viability line struck between a woman’s interest and the State’s interest in protecting prenatal life. According to the dissent, the majority’s holding is a “one-sided view” that “recognizes only the State’s [interest].”
Ignoring the fact that seven men wrote Roe, the dissent discourages extensive use of the Fourteenth Amendment’s history because it was ratified by men, and thus “not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.” The dissent asserts “our foundational charter as viewed at the time of ratification . . . consigns women to second-class citizenship.”
The dissent notes that Casey reviewed precedent, settling that “the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision-making.” The Justices disagree with the majority that certain precedents “have nothing to do with each other, or with the right to terminate an early pregnancy,” rather asserting that precedents “about bodily autonomy, sexual and familial relations, and procreation are all interwoven.”
The Justices raise a stare decisis argument: “none of those factors [i.e., changes in legal doctrine, factual changes, or absence of reliance] apply here: Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law . . . .” Rather, the dissent believes “tens of millions of American women have relied, and continue to rely, on the right to choose.” In response to the majority stating that Roe and Casey were “egregiously wrong,” the dissent views this as “nothing more than the new views of new judges.”
In support of Casey’s undue burden standard, the dissent contends the test has “given rise to no unusual difficulties.” Rather, the majority is “vastly overstating the divisions among judges applying the standard.” The majority’s substitute standard (i.e., rational basis review) comes with its own issue of how to apply the test. Further, the majority “invites a host of questions about interstate conflicts.” The dissent argues that the majority does not provide adequate legal or factual developments to support the decisions, relying on the medical, financial, and professional burden pregnancy “imposes”. Addressing the majority’s analysis of Roe and Casey, the dissent differentiates these decisions on the basis that they “were a product of a profound and ongoing change in women’s roles.”
The Justices contend that, without the right to abortion, “women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life” diminishes, and further argue that impoverished women especially rely on such a purported right. The expectation, and in turn reliance, on reproductive control “is integral to many women’s identity and their place in the Nation.” In rebuttal of the majority’s analysis, the Justices argue that “[t]he majority’s insistence on a ‘concrete,’ economic showing” for reliance cannot be “reconciled with our Nation’s understanding of constitutional rights.”
The Justices dispute the majority’s opinion, which they view as based upon “weakening stare decisis,” which “in a hotly contested case like this one calls into question this Court’s commitment to legal principle.” Finally, the Justices argue that the decision “undermines the Court’s legitimacy” and constitutional protections are subject to “a new majority, adhering to a new ‘doctrinal school,’ [which] could ‘by dint of numbers’ alone expunge [Americans’] rights.”
 410 U.S. 113 (1973).
 505 U.S. 833 (1992).
 597 U.S. ___, slip op. at 5–6 (2022).
 Natalie M. Hejran, Is Your State Ready for Roe to Go?, Ams. United for Life (Mar. 16, 2022), https://aul.org/2022/03/16/is-your-state-ready-for-roe-to-go/.
 410 U.S. at 153.
 505 U.S. at 871.
 Id. at 877.
 Miss. Code § 41-41-191 (2018).
 Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 545 (S.D. Miss. 2018); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 274 (5th Cir. 2019).
 Petition for a Writ of Certiorari at i, Dobbs, 597 U.S. ___ (June 15, 2020).
 Dobbs, slip op. at 5–6.
 Id. at 6.
 Id. at 11.
 Id. at 12 (citation omitted) (alterations in original).
 Id. at 14–15.
 Id. at 16.
 Id. at 23–24.
 Id. at 24.
 Id. (citing Roe, 410 U.S. at 139).
 Id. at 25.
 Id. at 30.
 Id. (citing Casey, 505 U.S. at 851).
 Id. at 30–31.
 Id. at 31.
 Id. at 32.
 381 U.S. 479 (1965) (recognizing a right of married persons to obtain contraception).
 405 U.S. 438 (1972) (recognizing a right of unmarried persons to access contraception).
 539 U.S. 558 (2003) (recognizing a right to engage in private, consensual sexual acts).
 576 U.S. 644 (2015) (recognizing a right to same-sex marriage).
 Id. at 35.
 163 U.S. 537 (1896).
 Dobbs, slip op. at 44.
 Id. at 45.
 Id. at 62.
 Id. at 64 (citing Casey, 505 U.S. at 856 (joint opinion)).
 Id. at 67.
 Id. at 77 (citation omitted).
 Id. at 78–79.
 Dobbs, slip op. at 1 (Thomas, J., concurring).
 Id. at 2 (citations omitted) (alteration in original).
 Id. (emphasis in original).
 Id. at 3 (citing majority opinion at 31–32, 66, 71–72).
 381 U.S. 479.
 539 U.S. 58.
 576 U.S. 644.
 Dobbs, slip op. at 3 (Thomas, J., concurring) (citing majority opinion at 66) (alternations in original).
 Id. at 3–4 (emphasis in original).
 Id. at 4.
 Dobbs, slip op. at 1 (Kavanaugh, J., concurring).
 Id. at 2.
 Id. at 3.
 Id. at 12.
 Id. at 11.
 Dobbs, slip op. at 1–2 (Roberts, C.J., concurring in the judgment).
 Id. at 1.
 Id. at 2–3.
 Id. at 3.
 Id. (citations omitted).
 See id.
 Id. at 5.
 See id. (citation omitted).
 Id. at 7.
 Id. at 6 (citations omitted).
 Id. at 9.
 Id. at 12.
 Dobbs, slip op. at 6–11 (Breyer, Sotomayor, & Kagan, JJ., dissenting).
 Id. at 12.
 Id. at 14.
 Id. at 15.
 Id. at 19.
 Id. at 20.
 Id. at 31.
 Id. at 32.
 Id. at 32–33.
 Id. at 34.
 Id. at 35.
 Id. at 36.
 Id. at 37–43.
 Id. at 46.
 Id. at 49–50.
 Id. at 51 (citing Casey, 505 U.S., at 856).
 Id. at 54.
 Id. at 57.
 Id. at 60.