What was the Real Controversy the Supreme Court used to Overturn Roe?
The Supreme Court accepted the case Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. certiorari to the United States Court of Appeals for the Fifth Circuit during its October 2021 term on the basis that Mississippi had argued that it wanted the Supreme Court to “clarify whether abortion prohibitions before viability are always unconstitutional.” The State changed it’s position from Roe did not need to be overturned for the State to win to an all or nothing ask of the Court to overturn Roe, after the Court had accepted certiorari on the ask to review the viability rule as extricable from Roe. The Court used that change in position of the State of Mississippi to review and overturn Roe. This case was argued December 1, 2021 and Decided on June 24, 2022.
What did Mississippi’s law say?
Mississippi’s Gestational Age Act provided that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–19
Syllabus of Dobbs
Respondents—Jackson Women’s Health Organization, an abortion clinic, and one of its doctors—challenged the Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates this Court’s cases forbidding States to ban abortion pre-viability. The Fifth Circuit affirmed. And this led to the appeal by the State of Mississippi to the United States Supreme Court.
What was the question that the Supreme Court was asked to address in Dobbs?
Mississippi asked the Supreme Court to “clarify whether abortion prohibitions before viability are always unconstitutional.”
The court was asked whether Mississippi’s abortion limits to 15 weeks of pregnancy violated the bright line rule in Roe of viability. In other words, Mississippi wanted to know whether Roe’s viability holding violated the state’s right to limit the choice of abortion to a shorter timeline.
What was the Dobbs Holding?
The Supreme Court held that: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Pp. 8–79.”
What underlying constitutional principle did the Dobbs holding affect?
The Dobbs holding affects choice, the woman’s right to choose was ultimately affected in this opinion. The woman’s right to choose abortion is not limited to just the right to choose abortion. “The right that Roe and Casey recognized did not stand alone . . . . The Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. . . . The right to terminate a pregnancy arose straight out of the right to purchase and use contraception straight out of Griswold v. Connecticut. The Dobbs holding changed course in how it applies the constitution to unenumerated rights.
Trauma for the Masses
When a right like this so core to society’s fabric, it is very traumatic collectively. “According to a paper published in 2018 at the National Institutes of Health, National Library of Medicine, collective trauma is “a cataclysmic event that shatters the basic fabric of society.” According to Psychology Today, “collective trauma can impact relationships, alter policies and governmental processes, alter the way the society functions, and even change its social norms.” While the term is often applied to mass events of violence like mass shootings, the Holocaust, the terrorist attacks of 9/11, and the ongoing Covid-19 pandemic, it also applies to the repeal of civil rights, systemic and historical oppression, and racism.” [You can read Abigail’s article on How to Process this Grief.]
What kind of constitutional review will the right to choose now be measured?
The right to make decisions regarding bodily autonomy will now be evaluated at the lowest scrutiny, rational basis.
Majority Rule ignored Stare Decisis
Roberts explains that precedent should only be overturned when it is absolutely necessary and only when a case cannot be resolved in more narrower terms.
If your argument is that the majority has a right to overturn a constitutional right because you don’t like that right, then you are missing everything our founding fathers fought for. They distrusted the majority just as much as they distrusted the King. They fought for individual freedom, NOT a right to rule over one’s neighbors. The reason you’re allowed to disagree with you ex, object and challenge a judge, dispute an expert’s report, fight CPS from taking your child because they believe they could raise your child better, etc. is because you have the freedom to choose how you wish to raise your child, you have the freedom to choose. You had the freedom to choose when you wanted to start a family. How many of you have chosen to use condoms and had one break and decided that you didn’t want a child at that time as it would have changed the entire course of your life. The simple fact of choosing to use a condom is not protected now either. Think about that for a bit.
Perhaps you were able to finish your medical degree because you had that choice, to use a condom, or the woman had access to birth control. Look at the ones who didn’t, how many of them had to drop out, and how many ended up in jail over child support when the relationship didn’t work out and their rights were violated by a judge who refused to recognize their rights. How many lives have been ruined by judges imposing their beliefs and their will onto parents and the children. How many children have been better off because their parents had that opportunity to wait and now they have solid careers and can provide the child they chose to have when they were ready with necessities and more. These are personal and private choices that Roe and Casey protected. Griswold and many others protected as well that have now been weakened because of the way that Alito has applied stare decisis.
Just for argument’s sake, how large of a majority is required before theft and thuggary become moral? Is it two out of three, three out of five, fifty-one out of a hundred, five-hundred-and-one out of a thousand? How many exactly does it take to make ruling over one’s neighbor moral?
Has the Supreme Court made mistakes in the past?
Yep, they sure have. They used to support Jim Crow Laws, Slavery, Segregation, and a slew of other horrible and hateful practices.
How did Alito use Dobbs to Overturn Roe v. Wade and Casey?
- Alito did not limit his ruling to the most narrow resolution.
- Alito argued that the petitioners petition limited him to an all or nothing decision.
- Alito exceeded jurisdiction and ignored judicial restraint.
Dobbs failed to extricate the viability rule in Roe from the private right to choose and make childbearing decisions without interference from the state. Alito’s decision has eliminated the protection for the woman’s right to choose and now weakens protections for other rights that fall under the same blanket of protection. Rights that you rely on to make family decisions, that you use to express opinions, and to educate your child are all subject now to this lowered review. Family courts will be even more confident that they can tell you how to raise your child now based on nothing more than the state’s idea of what is best for your child.
What were Alito’s Mistakes?
The following is a list of some of the ways the dissenters, Justice Breyer, Sotomayor, and Kagan, stated Alito erred in Dobbs. I also included a lot of Justice Roberts’ reasoning here as well, as Roberts only concurred with the judgment to uphold the Mississippi abortion law, but not the overruling of the constitutional right to abortion. Roberts explains how Alito overturned the woman’s right to choose improperly. Justices Breyer, Sotomayor, and Kagan explained how women relied on this right for equality.
What was Roe’s holding?
Roe’s holding was that women had a constitutional right to choose. That right included the right to choose to terminate a pregnancy, the right to decide whether they wanted to bear a child. Roe then set out metes and bounds to protect that right knowing that the states that wanted to ban abortion completely would try and find ways around this freedom, and to strike a balance between the state’s interest in protecting the life of the unborn; explaining when the state’s right could override the woman’s right to choose. States are well known for violating rights, which is why the people had to pass the 14th amendment, to apply the constitutional rights protections that were already applied to the federal government.
Roe did not prevent states from setting limits, but it did limit those limits to a viability rule. Justice Roberts in his concurring in judgment only opinion wrote that the two decisions from Roe could be extricated from one another, that Roe made two holdings the right to choose providing access to abortion, and the viability rule (when the states could limit the right). Alito did not agree and incorrectly held in Dobbs that the two could not be separated from each other. Alito’s reasoning for considering the overturning of Roe and Casey on this was a weak one. He stated that the State of Mississippi presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and Casey. Given those two options, the majority picks the latter.” This was not the premise that SCOTUS accepted certiorari under. The State of Mississippi changed their ask of the court after the Court accepted their original ask in their brief whether abortion prohibitions prior to the bright line rule of viability was always unconstitutional.
Alito exceeded his Jurisdiction.
Alito exceeded his jurisdiction. The only question before the court is what the court is to address. And if the court can resolve the issue narrowly then that is how the issue should be resolved. That is basic constitutional practice. You can find that in many parental rights appeals, where the court states that it was able to resolve an issue without reaching your constitutional questions, so it never reaches the constitutional questions.
The Court has a policy of going only so far as is necessary to resolve the conflict brought before them and no more. That is called judicial restraint.
One of the ways that Alito violates his constitutional duty in Dobbs, that the dissenters and Roberts in his concurrence in judgment only opinion give, is that the case before them was able to be resolved without reaching the underlying holding in Roe of a woman’s right to decide childbearing. Alito did not even have jurisdiction to consider overturning Roe when the question being asked of the Court did not address overturning Roe, it addressed the secondary holding in Roe on the bright line viability rule. Therefore, when a case can be solved without overturning a right it is required to be resolved in that way. It was not necessary to overturn Roe or Casey. This means that Alito exceeded his jurisdiction and was engaging in judicial activism.
Case and Controversy Rule
In fact, one can legitimately argue that this policy is actually a jurisdictional issue under Article III’s case and controversy rule. If the Court using lesser arguments has resolved the controversy, under what case and controversy does the Court claim jurisdiction to go forward. It is well-settled law that jurisdiction must be maintained at every phase of proceedings and every moment of those proceedings. Alito lost jurisdiction the moment the controversy could be resolved without going as far as he went. Justice Roberts correctly argues
Our established practice is instead not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
Balancing the right
Another reason was that Roe had taken into consideration what Alito claimed it didn’t and had balanced the right with the religious arguments and what they are calling pro-life arguments. Roe and Casey are excellent examples of applying the Court’s balancing tests. The Court will happily allow innocent people to be executed under these tests but it won’t allow abortion. Where is the morality in that and how can one claim to be pro death penalty and also pro life?
Roe had already balanced the life of the mother with the life of the unborn in its decision. Just as parents can violate their child’s life within certain limits, so can a mother when considering abortion within limits as well. It’s where these limits should be that was in question in Dobbs.
Consideration of how the right is being relied upon and used in society is traditional as well, but Alito remains silent on that issue.
How Alito took Dobbs too Far.
Alito admits to using religious bias to overturn a constitutional right. So on top of everything else, he is imposing his religious beliefs onto the world. He admits to this in his Notre Dame Closing Keynote speech at the Religious Liberty Summit on July 21, 2022. “Religious liberty and other fundamental rights tend to go together,” he said.
Even Justice Roberts who concurs with the judgment that the Mississippi law provides enough access/time for a woman to have a choice whether to continue a pregnancy, Roberts believes that Alito took Dobbs too far. He agrees that the Mississippi law, that was the subject of Dobbs, should stand, but did not agree with Alito that it was necessary to overturn Roe to do it. Mississippi was asking whether the bright line rule for viability constitutionally prohibited abortions sooner than that. Roe and Casey are not “inextricably entangled with and dependent upon the viability standard.” The underlying foundation of the holdings in Roe and Griswold “was the “right of decision in matters of childbearing”. These cases and others “recognize a constitutionally protected interest in making certain kinds of important decisions free from governmental compulsion” (internal quotation marks omitted); id., at 473-474
Roe did not declare an unqualified constitutional right to an abortion,” but instead protected “the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy”.
Roe protects “the claims of a woman to decide for herself whether or not to abort a fetus she is carrying. Roberts says “And there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.”
The question in Roe was whether there was any right to abortion in the Constitution. That question was not being asked in Dobbs. How far that right extended was a concern that was separate and subsidiary, and not part of Roe, so it was not briefed. The Roe court added that viability line on its own. It shouldn’t have done that. The Roe court did it as a way to to flesh out the metes and bounds of Roe’s core holding — that a woman has the private right to decide if she wants to continue a pregnancy. Roberts agrees that this right was properly decided and established.
Since the only question before the Dobbs court was whether or not the viability rule was a constitutional line, that is all the Dobbs court should have decided. Roberts agrees that the viability line should be discarded, and the states can make restrictions prior to that time so as long as the woman still has a choice.
Where Alito errs is in his belief that a constitutional right cannot be addressed separate from its contours, and instead Alito decided that the right itself could not be separated from the viability rule. He was wrong. Overruling the viability rule resolved the matter and nothing more should have been done. The basic right should have been left alone. But then that wouldn’t have served Alito’s purpose of imposing religious bias. Alito saw an opportunity to impose his religious beliefs and he took it. Alito ignored judicial restraint and participated in judicial activism.
Roberts reasoning is the reason that I agree that pro-choice is pro-rights and that limiting abortion to 15 weeks and then only those allowed after that if the mother’s life requires it. So anyone that is for the Dobbs decision to reverse a constitutional right is not for protecting your rights at all.
If you take away reasonable opportunity for a woman to choose whether she wants to continue a pregnancy, then you force a pregnant woman to carry a baby in their womb against their will. You are taking their choice away. You are deciding for them that their body should be used. You are allowing government to decide for the woman whether she wants to have children or have more children, whatever the case may be. Then you are subjecting the woman to health risks and possible death from the pregnancy. These are all personal choices that this woman has been protected by privacy to make. And when you remove those protections you have creeps tracking women and putting them at risk of having the community stalk and harass her. This ruling puts women in harms way where men who wish to plan their seed to control that woman’s life and womb have been empowered to do so. You are putting that woman’s life at greater risk then they might have if they weren’t pregnant, and you are changing the course of that woman’s life forever against her will. If the woman chooses to continue a pregnancy willingly and chooses the risk of carrying a pregnancy to term then that risk is by her choice, but if she does not then it is none of any of our business, not yours, not mine, and certainly not the government’s. The only thing that is our business and your business is whether there is safe access to safe procedures, and whether the woman was provided with adequate time to make the decision.
Free Will is a Gift from God
If it is an immoral choice then God himself will sort it out in his own time. Free will is after all a gift from God, one that Alito appears to reject. When it comes to who stands better with God, a teenage child rape victim choosing abortion so that the rapist doesn’t further cause even more damage to that child’s body and brain; or Alito in defying God’s gift of free will. My money is with the child who chose abortion. The child should not be condemned to forever carry that person’s seed to fruition and I refuse to believe that God would require that either.)
Therefore it is misleading if you think that Roe didn’t allow abortions to be limited. Roe’s limits are what were in question in Dobbs. Mississippi just wanted to know whether those limits could be reduced. What Roe did was protect women from religious bias to control their rights. Roe did not prevent the states from placing limits on abortion. It just didn’t allow the states to completely get rid of access and did not allow a total ban. It did set a viability limit and that is what was in question. But as for the right itself, Roe adequately balanced the state’s interest against infanticide with the woman’s right.
If Roe and Casey made an error on abortion it was in failing to fully articulate the basis of privacy rights and how privacy rights should be protected even if in some instances the results are distasteful to us as individuals. The reason the Court didn’t do so is that the Court doesn’t fully believe in freedom itself. Justice O’Connor who wrote Casey, voted against privacy rights in Washington v. Glucksberg where the privacy right at issue was the right to commit suicide. The problem the Court has and that most everyone else has is that they want freedom only where the consequences of freedom pleases them and they want totalitarianism where the consequences displease them. This is precisely why our founding fathers distrusted democracy and worked so hard to restrain it in our constitution. They knew that their neighbors were all petty kings just waiting for their turn to rule over their neighbors if given the power. We have a constitutional republic rather than a direct democracy.
Will you be so supportive of Alito when he overturns parental rights saying that they are unenumerated and therefore up to the states?
Make no mistake, Alito did NOT reason through a balancing of privacy interests against the interests of the State. No, Alito had flat out declared by his almighty power that women do NOT have a privacy right over their own bodies when biology or a rapist forces itself into their bodies. That simply isn’t judging and isn’t what judges legitimately do. It was straight up tyranny imposed through overwhelming power.
Most of the parents who follow my page follow my work because they recognize that states are ignoring most of their fundamental parental rights. State’s make it the State’s business how you lawfully parent your child, and States are making it more difficult for you to live your life. Divorced parents who make parental choices that are both constitutionally protected and otherwise lawful under state law are subject to State interference and overriding of their lawful and constitutionally protected choices precisely because they are a historically despised minority who for hundreds of years right up until the early 1970’s were subjected to open blatant bastardy laws that are every bit as vile as the Jim Crow laws.
Those of you supporting Dobbs wholesale, what you are supporting is more interference in your day-to-day life and your relationship with your child. So go right ahead and cheer about being ruled over by tyrants dictating what choices you can make about child rearing when the other parent disagrees with you, when a GAL disagrees with you, when a child custody evaluator disagrees with you, when a judge disagrees with you, when the state legislators disagree with you, and you don’t get to live the life you choose with your child because you were okay with having protected rights overturned when there was a less invasive way to resolve the Dobbs case. But since you are okay with losing rights, don’t ask me for help when yours get removed. Because there will be no point since the Supreme Court is just going to tell you that your parental rights are up to majority rule in your state.
Just imagine if you had to beg your legislators for the right to travel, the right to marry who you want to marry, the right to integrate, the right to be different than the majority, the right to wear what you want to wear, the right to express yourself how you choose, the right to associate with who you wish to associate with, the right to pursue your dreams, and the list goes on and on.
A great deal of our privacy rights arguments come directly from Casey which goes into great detail addressing the rights of close family members relative to other close family members. While Dobbs didn’t directly overturn those holdings or those arguments in support of the Court’s holdings, it demonstrated that those arguments will not matter against the Court’s moral viewpoints. Justice Thomas for one doesn’t even believe that the constitution protects your parental rights at all and would happily overturn your parental rights through the exact same judicial activism that he displayed in Dobbs.
Kavanaugh states that the constitution is neutral and is not pro-life or pro-choice. He is absolutely wrong and the duty of the Supreme Court Justices is to ensure that Americans continue to have the rights to choose what is best for themselves and not have others choosing for them; and when others are authorized to choose for them cannot interfere with those rights without specific tailoring and meeting specific stringent criteria for a reason.
Alito has paved the way for the very cases that Kavanaugh claims have not been affected by this ruling. But then remember that this case opened with the State of Mississippi claiming that the court did not need to disturb Roe to rule in their favor either as Chief Justice Roberts points out in his concurring in the judgment only opinion, that starts off as follows:
We granted certiorari to decide one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Pet. for Cert. i. That question is directly implicated here: Mississippi’s Gestational Age Act, Miss. Code Ann. §41–41–191 (2018), generally prohibits abortion after the fifteenth week of pregnancy—several weeks before a fetus is regarded as “viable” outside the womb. In urging our review, Mississippi stated that its case was “an ideal vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Pet. for Cert. 5.
What effect does Dobbs have on Parental Rights?
Parents who want their rights protected but cheer the overturning of Roe contradict themselves. The right to have care, custody, and control decision authority over your child comes from the right of privacy, just as a woman’s right to bodily autonomy. Protecting abortion as a privacy right is the same as protecting your parental rights. Protecting pro-choice is protecting your rights to choose and not have government choose for you. Constitutional unenumerated rights are necessary for the exercise of these rights.
What effect does the Dobbs decision have on society?
Well approximately half of society has lost a fundamental right, the right of choice, privacy, and bodily autonomy. Deb Dana, Ph.D., Author of Anchored, says that lack of choice is a predictable cue for danger to our nervous system, and thus it’s no surprise that many of us are feeling hopeless given a strict removal of choice by the Supreme Court. [excerpt from Abigail Bassett]
This shock of loss of rights causes even more hopelessness, anxiety, and depression. It is more important now than ever to find communities that support your rights and support those organizations and begin to work together to effect change.
Since you are here reading this article, you are interested in parental rights, you believe that these are fundamental rights, and you believe that they should be protected. If you are coming here to find a way to get that protection, you can support this organization and our efforts by getting a membership. Even if you aren’t actively in litigation and don’t need our materials right now, you can ensure that these materials survive and are available to the public for decades to come with your monthly membership contribution.
Updated on August 10, 2022
Beginner's Guide to Family Law
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