The US Supreme Court in Dobbs returns the question of abortion to the people and their elected representatives, says Teresa Collett, counsel of record and co-author of an amicus brief in Dobbs. The dissenting justices claim that maintaining judicial control over abortion legislation is necessary for the well-being and equality of women, which is “demonstrably false and harmful to women,” she contends.
In Dobbs v. Jackson Women’s Health Organization, a majority of the US Supreme Court vindicated the pro-life movement’s persistence and faith that we still live in a democratic republic and not a judicial oligarchy.
As the Dobbs majority stress repeatedly, the opinion returns the question of abortion to the people and their elected representatives—it does not prohibit a single abortion in any state. Voters in New York and Illinois are free to continue to elect officials who celebrate and fund abortion, while representatives of the voters in Mississippi and Idaho can now protect both unborn children and their mothers.
Dobbs Is Not a Threat to Other Rights
The majority reminds readers that unlike contraception, sodomy, and same-sex marriage, abortion is unique. The goal of the activity is the destruction of a separate and unique human being. While some prefer Latin words like fetus and embryo, many Americans, according to a survey, recognize these beings as tiny unborn children that should be protected from lethal violence.
The Dobbs majority assiduously avoids declaring a position on whether the proper position is that of those who argue it is merely fetal life or those who recognize the child as a tiny human being while clearly stating that the Dobbs case has little to no relevance to cases dealing with other activities.
Justice Samuel Alito and the majority adhere to the well-established standard for recognition of non-textual constitutional rights, typically identified as a part of the “liberty” protected by the Fourteenth Amendment. This standard requires the asserted right be “deeply rooted in this Nation’s history and tradition” and an essential component of what the court has described as “ordered liberty.”
The historical requirement explains why the Roe opinion spent more than 20 pages discussing the history of abortion law. But as the Dobbs majority note, Roe’s history was “faulty,” misstating or ignoring relevant cases and legal commentary.
The dissenting justices in Dobbs attempt to refute this point by focusing on the majority’s description of common law and early statutory protections of the unborn, while largely ignoring the later history provided by the majority.
Many states retained their abortion prohibitions through the 1950s and 1960s after vigorous political debates. Failure to acknowledge this weakens the dissent’s claims.
The dissenters then attempt to parlay their incomplete recitation of history into a credible threat to a host of other judicially recognized rights such as contraception, sodomy, and same-sex marriage. They point to the concurring opinion of Justice Clarence Thomas, who, while joining the majority decision, reiterates his long-standing objection to recognition of any substantive component in the Due Process Clause.
The dissenting justices admit that Justice Thomas was alone in his opinion. Nonetheless they grimly note that, like abortion, these “sexual liberties” have only the most recent legal pedigrees.
Of course. they are correct about the recent origin of these rights, but they fail to identify a single state that is, or has been, considering a ban on non-abortifacient contraception, or recriminalizing sodomy, or revoking marriage licenses issued to same-sex couples. Such legislation is a predicate to any legal challenge to the status quo, and to my knowledge none exists.
The main point of the dissenting justices, however, rests on the claim that maintaining judicial control over abortion legislation is necessary for the well-being and equality of women. This is demonstrably false and harmful to women.
Women’s Equality Is Not Dependent on Abortion
The Supreme Court in 1992 in Planned Parenthood of Southeastern Pa. v. Casey was the first to embrace this rationale for the judicially created right to abortion. According to Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy, abortion was necessary to assure women’s capacity “to participate equally in the economic and social life of the nation.”
This position ignores two important facts. First, a cursory review of history reveals that women’s increased participation in political, social, and economic spheres of American life predated Roe.
Our brief on behalf of 240 women professionals and scholars discusses the history of women’s progress throughout the 20th century including federal legislation like the Equal Pay Act of 1938, and the Civil Rights Act of 1964. There is no question that Rosie the Riveter did more to advance women’s opportunities than Jane Roe or any plaintiff in abortion cases.
The second fact that undermines the claim that abortion is necessary for women’s equality is the absence of a consistent correlation of abortion with women’s progress. While it is true that women’s participation in all aspects of society continued to grow in the 1970s and 1980s after Roe created a right to abortion on demand, it is equally true that during the past 30 years, when abortion rates have fallen dramatically, women’s progress has accelerated.
From 1990 to 2016 abortion rates declined 46%. During this same period, the percentage of women in the workforce with a college degree or more increased by 70%. Between 1997 and 2017, the number of women-owned businesses increased by 114%, and businesses owned by women of color grew at a rate of 467%, as cited in the brief.
The Dobbs decision to return abortion to the states was long overdue, but as many commentators have said, this is only the end of the beginning. Now begins the hard work of persuading our neighbors and friends to join with the pro-life movement in our efforts to provide resources and protections to mothers and their children, both born and unborn, while removing barriers that persuade women that they “need” abortion to flourish.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Teresa Collett is counsel of record and co-author of the amicus brief on behalf of 240 women professionals and scholars file in Dobbs and directs the Prolife Center at the University of St. Thomas (Minn.). The views she expresses do not represent views of the university or other entity.
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