In 1973, Roe v. Wade and its companion case, Doe v. Bolton, were decided by a 7-2 majority. The dissenters, Justices Byron White and William Rehnquist, saw the freshly created abortion right as a total fabrication out of thin air.
Justice White wrote that he found “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”
He argued further that “the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.” Democracy and the political order got brought to a screeching halt by the Supreme Court.
White called that decision an “exercise of raw judicial power” and “an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
From White to Scalia.
Nineteen years later, Justice White joined a dissent by Justice Scalia, echoing a similar point in Planned Parenthood v Casey. Scalia wrote, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
But Roe and Casey prevented that from happening. As Scalia noted, “the issue [is] not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States.”
The answer to that question has always been an unequivocal “No.” There’s no history supporting the recognition of that right, no philosophy saying it exists in nature, and no clause or amendment in the Constitution stating that point. Could the movement seeking abortions on demand have it as a right? Certainly! They can amend the Constitution of the United States or amend state constitutions.
Dobbs fixes the great wrong.
But until the Supreme Court ended the judicial tyranny of the Roe/Casey scheme, nothing could happen. Scalia warned in 1992, “by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”
It is in this history that the Dobbs v Jacksons Women Health Organization case entered. And that is why the majority opinion said it was removing the Supreme Court from the political fight over abortion.
The majority opinion said, “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.”
Democracy has been restored. Abortion had no basis for being a right under the US Constitution. It now returns to the states, federal government, and the people voting in each on how the country will handle abortion. Does a state want to be an abortion-on-demand jurisdiction? It can do that the same as always. If a state wants to ban abortion, it can do that now and everything in between.
Political democracy was restored.
The Supreme Court restored choice and gave legislatures back their power. It’s one of the rarest occurrences in history when a branch of government gives up arbitrary and absolute control over an issue and gives it to the democratic process. But that is what happened here.
No longer is the democratic process foreclosed to answer the question. No longer is the Supreme Court issuing forth raw judicial power to create something out of thin air, as a legislator does. And no longer is the Supreme Court deciding the fate of the unborn life.
Dobbs is one of the most important cases decided in Supreme Court history. It takes that role as one where the Supreme Court acknowledges a wrong, fixes it, and restores power to the people. And this occurred under extreme duress. Josh Blackman points out, “Five justices were willing to take this bold and correct legal step in the face of never-ending personal attacks, efforts to pack the court, fallout from the leaked draft opinion, protests outside their homes and even an assassination attempt.”
That is courage under fire. And the Dobbs Court deserves our thanks for restoring order to the judiciary. The dissents of White, Scalia and Rehnquist proved true. Roe and Casey are gone, the states empowered, and the future is open.