Unit 6 PSC 1387

Dobbs vs Jackson

Background of Dobbs

  • Griswold vs Connecticut

    • Connecticut banned birth control/condoms/etc

    • Griswold from planned parenthood sued

    • Court struck down this law under the implied “right to privacy”

      • This comes from Penumbras from other rights, like the right against a quartering act → implies right to privacy

    • This case created the right to privacy

  • Einstadt vs Baird

    • Einstadt argues Griswold only applies when people are married and in their bedroom

    • Supreme court says no thats dumb

  • Roe vs Wade

    • Roe extends right to privacy to abortion

  • Planned Parenthood vs Casey

    • Replaces the trimesters of Roe with “undue burden” and viability

      • undue burden = substantial obstacle 

    • Most people agreed with what the court ruled did or did not count as an undue burden



The Decision

  • 6-3 Decision

  • The majority

    • Led by Justice Alito

      • May be motivated by pro-life believes

      • May be motivated by strict constitutionalism (believe Roe was an overstep by judges)

    • All appointed by Republicans

Facts of The Case

  • Mississippi banned doctors from performing abortion after 15 weeks unless for medical reasons

  • A doctor sues

  • This forces the court to either affirm or overturn Casey

Overturning Precendent

  • These five factors are generally needed for a precedent to stand

    1. Nature of The Court’s Error (was the court wrong?)

    2. Quality of the Reasoning

    3. Workability (is it able to be understood reliably by lower courts for specific cases)

    4. Effect on other areas of law (Should not have unintended impacts)

    5. Reliance interests (is anyone reliant on this decision)

Majority Opinion

Dissenting Opinion

Majority Response to Dissenting

1) Nature of the courts error

They were “egregiously wrong” and overreaching

The majority is actually the one overreaching and making policy

No you’re overreaching Roe is wrong.

2) Quality of the reasoning

Viability is dependent on technology/medical access, and laws need to be able to be applied equality

Its good reasoning

3) Workability

The language is far too vague, lower courts are often disagreeing. (When is something viable? When is something an undue burden?)

Roe is completely workable

4) Effects on other areas of law

There were unintended consequences, lots of free speech issues with following protests and federal funding questions

Dobbs will have a greater effect on other areas of law then Roe

5) Reliance Interests

No, no one relies on abortion. Reliance comes from when someone plans ahead based on a court case, no one plans to have an abortion

Women do rely on Roe, women will make different career/life/etc decisions based on this case

That logic is circular; if women rely on abortion due to Roe, if they don’t rely on abortion unless they can abort, its not real reliance

Due Process → Is it “deeply rooted in history and tradition?” 

No, pre-america english law called abortion a crime and murder and there was no support for abortion in law before Roe

Yes, the english had a law saying abortion was allowed before “the quickening” (viability), and looking pre-Roe is outdated

Pre-roe is not outdated, history still matters

Due Process → is it “implicit” in the concept of ordered liberty? (Due process is how courts can “create” a law not in the constitution)

No, it is not part of broader autonomy (the “purpose of existence”) nor is it needed to ensure women have the same rights as men.

The majority is completely wrong on these points; women have relied on abortion as a safety net.

People in some states see it differently; at least half the country disagrees

How does this apply to to other cases

Kavanaugh - This is only about abortion

Thomas - this should apply to more scenarios

doesn’t believe the majority

so what it’s still true

Future Plans for Abortion Rules

Abortion laws are not the courts’ decision— return abortion to politicians

This is problematic and will force women to carry [horribly conceived] fetuses

That’s just the pro-choice view and ignores the pro-life view. Both need to be balanced.

Future Court Cases: Use Rational-Basis test with “strong presumption of validity,” meaning judges must assume the law, liberal or conservative, is already valid, making it hard for any law to be struck down.


Roberts ‘concurring’ opinion

  • Roberts is basically his own opinion tbh

  • The court does not actually have to affirm or overrule roe v wade

  • the court should make as narrow of a ruling as possible

  • There should be a “more measured course” - replace viability with “reasonable opportunity” to get an abortion 

Alito’s (Majority) Response to Roberts

  • His opinion doesn’t cover Due Process concerns

  • No ones legal brief or opinion seen by the supreme court agrees with this 

  • Roberts doesn’t want to replace viability but not overturn Casey, but viability is central to Casey, so this is dumb

The Dissent

  • Facts

    • The 15 week law is now 6 weeks

    • They don’t need to affirm or overturn

Contemporary Issues

Student Loan Debt

  • Biden administration wanted to cancel 20,000 of student loan debt

  • Led to Biden vs Nebraska

    • Court decided executive branch had the power to make modest, but not transformational changes

  • Countermajoritarian

  • The people didn’t care if it was a logical decision they wanted their 20,000

  • There was no electoral pushback because Biden then helped the issue too much

    • New repayment schedule, debt forgiveness for those in poverty, debt forgiveness for anyone who paid for 10 years and has 12k or less left

Dobbs

  • Despite the fact that Roe was countermajoritarian, so was Dobbs

  • There wasnt really electoral pushback

    • Trump’s great at deflecting to his strengths (mainly going back to migration)

    • Harris should’ve done that with abortion and she didn’t do it

    • Grassroots Pushback was effective

      • Abortion went up after Dobbs

    • In short, Democrats cared more fixing their problems then winning elections