Debate Desk
Did Dobbs Take Away a Constitutional Right From American Women?
Dobbs held the Constitution does not mention abortion and returned the question to elected representatives; the debate continues state by state.
The claim
Critics say that Dobbs v. Jackson Women's Health Organization (2022) took away a right that women had held for nearly fifty years under Roe v. Wade, that it put their health and autonomy at risk and that a court of unelected judges overturned settled precedent.
The answer in three points
- The question the Court decided was where the issue belongs. The Constitution does not mention abortion, and the Court held that the liberty protected by the Fourteenth Amendment does not extend to it because abortion was not, in the Court's words, deeply rooted in the nation's history and tradition. Whether it is a good policy is a separate question for voters.
- Roe was criticized from the start by scholars on both sides, including some who supported the result, as weak in its reasoning. A decision that ended the debate by judicial decree left the country divided for decades. Returning the question to the states means the people can argue, vote and amend laws.
- The result is a patchwork, as is true of many other subjects in a federal system. Citizens who care can persuade neighbors, elect legislators and pass laws or amendments to reflect their views. A democratic process can also protect the conscience of those who believe an unborn child is a human life deserving of protection,.
The debate now moves to legislatures and ballots, where it can be settled by persuasion.
The numbers
- The Supreme Court decided Dobbs v. Jackson Women's Health Organization on June 24, 2022, overruling Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
- The Court's vote in Dobbs on the overruling of Roe was 5 to 4, with Chief Justice Roberts concurring only in the judgment.
- Mississippi's law at issue prohibited most abortions after fifteen weeks of pregnancy, according to the Court's opinion.
What they will say next
"Precedent should be respected." Precedent matters, and the Court has overruled cases it found wrong, as in Brown v. Board of Education, which rejected Plessy v. Ferguson. The question is whether the earlier decision was correct.
"Women's health is at risk." Laws differ by state in their exceptions, and concerns about clarity for doctors deserve attention from legislators. Policy questions of that kind are for debate and not for medical claims here.
"A majority supports access." Opinion polls show a complex picture, and voters in states have decided in both directions. That is how the question is now resolved.
"This was a political decision." The opinion rested on the legal question of what the Constitution says. Its critics and supporters are both free to make their case to the public.
When the Constitution is silent, the people decide.
"Most Americans disagreed with the ruling." Polls vary by question, and states have voted both ways since. Elections and referendums are how the issue is now decided.