The 1973 Roe v. Wade decision from the U.S. Supreme Court could soon be overturned or significantly weakened as the nine justices prepare to release their ruling in the case of Dobbs v. Jackson Women’s Health Organization.
A draft opinion from the Supreme Court, penned by Justice Samuel Alito, was recently leaked to the public, showing that a majority of the justices were in favor of overturning the landmark abortion case, or at least that was the case in February when the draft opinion was written.
It is rare for the high court to overturn a previous ruling because of the idea of stare decisis, which means “stand by what’s decided,” according to a constitutional law professor at the University of Miami, Caroline Mala Corbin.
“As it happens, it’s in an abortion case where the court sort of laid down the rules for when it is justifiable to overrule a previous decision,” Corbin said. “So for example, if there’s been a significant change in the facts that made a prior rule no longer make sense, or if the law has been graduating and evolving in such a way that an earlier decision really isn’t the law of the land anymore, then it might make sense to officially acknowledge that the law has shifted from what it was originally. Or, for example, if the rule the court had announced in an earlier decision was simply not workable. It was just too complicated. It was out in the real world, it was impossible for courts to actually apply and so that’s the general rule for stare decisis.”
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Roe has faced challenges many times over the nearly 50 years since the ruling first passed. The ruling determined that abortion was an unenumerated right provided by the Constitution.
“The Constitution protects individual rights,” Corbin said. “Some of those rights are specifically listed in the Constitution — like the First Amendment, which protects your right to free speech — and some of those rights are not specifically listed in the Constitution... Those are called unenumerated rights. Unenumerated means not listed. So the Constitution protects both those that are specifically listed and those that are not specifically listed. The Constitution protects unenumerated rights. These are really important fundamental rights. So the question becomes, how do we know which unenumerated rights the Constitution protects, and which ones are not protected?”
The unenumerated right to an abortion lies in the 14th Amendment to the Constitution, according to the Roe ruling.
“It’s the due process clause of the 14th amendment which protects our right to liberty and liberty is read as including fundamental rights, both those that are listed and those that are not listed,” Corbin said.
The due process clause also guarantees a right to privacy, which the high court originally said extended to a woman’s decision to determine whether to bear a child.
Corbin believes that a move to overturn Roe would not meet the current standard of stare decisis.
“Generally, the Supreme Court will follow its precedent unless it has a really strong reason for changing its prior decision and that has not occurred with abortion,” she said. “There has been no major change in the facts about it. There has been no major shift in the law.”
However, in the draft opinion, Alito argues that Roe was flawed from its inception. It is not yet clear whether the draft opinion will stand as the final ruling of the court. Some of the justices may have changed their mind since the initial vote, though it remains likely that the current protections provided by Roe will not stand as is.
The current challenge to Roe revolves around a Mississippi law that would ban abortions after 15 weeks, which does not meet the current constitutional standard for an abortion ban.
“The current rule now for bans is that it is unconstitutional to ban abortion before viability — viability is at approximately 24 weeks — and so in the Roe decision it held that pre-viability bans were unconstitutional in (Planned Parenthood of Southeastern Pennsylvania v. Casey). The Supreme Court said pre-viability bans were unconstitutional,” Corbin said.
U.S. Rep. Darren Soto discussed the leaked draft opinion on The Weekly. You can watch the episode in the media player below:
The law professor points out that the court could, in its ruling, decide that bans after 15 are constitutionally permissible but that some form of abortion access is still protected, adding that it was not necessary for the court to make this ruling an all or nothing decision when it comes to abortion.
“To the extent that it would uphold a 15-week ban, it would necessarily overrule part of Roe and Casey and the existing abortion jurisprudence,” Corbin said. “However, (the court) didn’t have to eliminate it entirely. It was certainly possible — and may still be possible, we don’t know what the final decision is going to say — for the Supreme Court to say there is still protection for abortion but it doesn’t preclude banning it at 15 weeks. So, again, it was an opportunity for (the justices) to revisit the question of abortion but it was by no means necessary for them to decide whether it was going to completely stay or go.”
The court is expected to release its final decision in the Dobbs case in late June or early July. If the court strikes down Roe in its entirety, each state would have to determine its own stance on abortion.
Florida recently passed a 15-week ban, similar to the one being disputed in the Supreme Court. That ban is set to go into effect on July 1.