SCOTUS Decision on Abortion for Dummies

Posted on ; Last updated on September 6, 2022
Justice
Justice

Opinion of the Court

1. The Constitution of the United States does not protect a right to (obtain) abortion, neither explicitly nor implicitly.
2. There are other rights not mentioned in the Constitution, but the Court has judged them to be protected by the Constitution, such as the right to obtain contraceptives and right to same-sex marriage.
3. Abortion is fundamentally different from those rights. It concerns not only a pregnant woman, but also the potential life of an unborn child. [Therefore, it is not simply a matter of protecting individual rights against government compulsion, but a matter of conflicting rights, that requires the arbitration of the legislature.]
4. The Court has erred in its previous decisions on abortion, namely, Roe and Casey, in two fundamental aspects: First, it usurped the power of the legislature when it made policies governing the lives of the people; Second, its policies were neither justifiable in principle nor feasible in practice. Therefore, the Court should overrule those decisions.
5. In overruling Roe and Casey, this Court neither denies nor affirms a right to abortion. It simply judges that the Constitution is neutral on the issue, and restores the power to the people and their representatives to decide the issue through democratic process.

Dissent

1. Everyone has a constitutional right to control their own body. This is derived from the right to “liberty” protected by the Fourteenth Amendment. For women, this right includes the right to terminate her pregnancy, hence right to abortion.
2. Roe and Casey struck a balance between protecting right to liberty and protecting potential life by setting a time during a woman’s pregnancy after which abortion can be regulated by the State.
3. By overruling Roe and Casey, the Court has taken away the constitutional protection of women’s right to liberty.
4. The same logic and criteria adopted by the majority could potentially be used to overrule other controversial decisions, and thereby take away other rights recognized by the Court.

Personal Observations

First and foremost, the majority and dissent disagree on not only what is constitutional, but also how to decide. Neither provides a set of clear and coherent legal criteria, with which the Court can consistently determine the constitutionality of any right. Moreover, the Court is divided into three, each accusing the others of lacking judicial restraint. From a layperson’s perspective, I wonder how SCOTUS can function properly, if its members can’t agree on what their job is, how to do their job, or what constitutes a job well done. If nine eminent judges can’t reason together, resolve their differences through rational discourse, and reach a consensus, what can be expected from the rest of the people?

Second, the majority opinion emphasizes that its decision doesn’t affect other rights recognized by the Court, because no other rights put potential life at stake, but it doesn’t explain why the Court should draw the line when life is at stake, but not when liberty or morality is at stake. On the other hand, the dissent also fails to address the argument that the line drawn by Roe and Casey is “arbitrary” and “makes no sense”, specifically, it fails to explain why a particular point in pregnancy, and not any other, would change the “balance” between the conflicting rights in dispute.

All things considered, after reading the opinions and listening to the oral arguments multiple times, I would agree with the majority decision to restore the power to the people. To paraphrase the late Justice Scalia, the bottom line in democracy is not what is right, but who decides.

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