“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions,” Justice Elena Kagan wrote, summing up what the Republican-appointed majority on the U.S. Supreme Court did in its decision Friday that stripped Americans of the federally protected right to abortion. “A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. ”
The court’s ruling came in a case out of Mississippi, Dobbs v. Jackson Women’s Health Organization. The overturning of Roe v. Wade, the 1973 decision establishing an American right to an abortion, and Planned Parenthood v. Casey, the 1992 decision confirming Roe and prohibiting states from creating regulations imposing “an undue burden” on people seeking an abortion, had been expected since a leaked draft of Justice Samuel Alito’s majority opinion was published by Politico in early May. The final version of the majority decision is almost identical to the draft, which had been widely criticized for its aggressive language, disregard of established legal precedent, selective use of and apparently deliberate distortions of history, as well as its frequent specious reasoning.
“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,” Alito wrote in his sweeping opinion, which asserts, “Roe was egregiously wrong from the start.”
In the dissent, which Justice Breyer and Justice Sotomayor joined, Kagan explained how extraordinary the majority’s action is.
“Rescinding an individual right in its entirety and conferring it on the State, an action the Court takes today for the first time in history, affects all who have relied on our constitutional system of government and its structure of individual liberties protected from state oversight.”
The Dobbs case did not require the justices to overturn Roe and Casey or to eliminate the right to abortion to uphold the constitutionality of the law that was before the court. Mississippi’s Gestational Age Act bans abortions after a pregnancy reaches 15 weeks. The authors of the bill were open about it violating the federally guaranteed rights of Mississippians, as they had established for half-a-century, saying when it was passed in 2018 it was intended to challenge existing constitutional law.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham of U.S. Court of Appeals for the 5th Circuit wrote in his opinion striking down the Mississippi law as unconstitutional.
The 5th Circuit is the most conservative federal appeals court in the country, and has ruled in favor of conservative interests in many legal challenges that were generally considered extreme, but it had no problem deciding the Mississippi law violated the constitutional rights of its citizens.
In its appeal of the 5th Circuit ruling to the Supreme Court, Mississippi asked the justices to use their case to overturn Roe and declare there is no constitutionally protected right to an abortion.
Reynolds’ victory lap
In July 2021, Gov. Kim Reynolds joined 10 other Republican governors in filing an amicus brief petitioning the court to use Dobbs to overturn Roe and completely strip Americans of an established constitutional right for the first time in history.
“For years, democratically elected representatives in states like Iowa have tried to defend innocent human life only to be stymied by the Supreme Court’s decision in Roe v. Wade,” Reynolds said in a written statement at the time.
Shortly after the court’s ruling was announced on Friday morning, Reynolds’ office issued a statement celebrating it.
“The Supreme Court’s greatest moments have come when it allows America to embody more perfectly the enduring truth on which it was founded: that all human beings, without exception, are created equal. By that measure, today’s historic decision is clearly one such moment. But the fight for life is not over. As Governor, I won’t rest until every unborn Iowan is protected and respected.”
“So we know where she stands,” said the Democratic nominee for Iowa governor, Deidre DeJear, responding to Reynolds’ statement during a virtual press conference with state Democrats Friday afternoon. “We know where she stands. And where she stands is not on the sides of Iowans.”
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The fight for the fundamental right to choose is far from over. Read my full statement: pic.twitter.com/TxgmbwDznO
— Deidre DeJear (@DeidreDeJear) June 24, 2022
The majority opinion, and uncertain future of court precedent
That the court could have upheld the Mississippi law without overturning Roe is shown by the two separate vote totals in the case. Chief Justice John Roberts joined onto the section of the ruling validating Mississippi’s law, making that vote 6-3. But the chief justice dissented from the sections overturning Roe and Casey that eliminate production for reproductive rights. Roberts cited the need to respect long-established precedent in his dissent.
But 49 years is not enough time for a right to be considered long-established, according to Alito, and the four justices who joined him to overturn Roe and Casey, Clarence Thomas, Neil Gorsuch, Brent Kavanaugh and Amy Coney Barrett.
“The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them,” Kagan wrote in the dissent. “The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”
“The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in ‘1868, the year when the Fourteenth Amendment was ratified’?” the justice continued. “The majority says (and with this much we agree) that the answer to this question is no.”
Kagan goes on the explain just how severe the limit on rights, not just those associated with abortion, this majority’s approach creates.
“The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again… If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.”
The majority’s opinion that decades of precedent establishing a whole series of rights based on the substantive due process afforded by the Fourteenth Amendment lays the foundation for overturning numerous other right Americans rely on.
“By overruling Roe, Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority abandons stare decisis, a principle central to the rule of law. ‘Stare decisis’ means ‘to stand by things decided’… It maintains a stability that allows people to order their lives under the law,” Kagan wrote. “… In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey ‘egregiously wrong.’ That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees.”
Alito, in his majority opinion, flatly rejected the idea that today’s opinion will undermine other established rights, claiming abortion is a unique case. But it wasn’t just the three dissenting justices that disputed that claim. So did Justice Clarence Thomas in his concurring opinion striking down abortion rights.
“The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, (1965) (right of married persons to obtain contraceptives); Lawrence v. Texas, (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, (2015) (right to same-sex marriage), are not at issue,” Thomas, the court’s longest-serving justice, wrote. “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
‘Meticulous and well-reasoned’: Grassley’s role in ending Roe
That the sections of the Dobbs decision eliminating the right to an abortion were approved 5-4 highlights the importance of Sen. Chuck Grassley’s role in overturning Roe.
In March 2016, Grassley, then the chair of the Senate Judiciary Committee, refused to even hold a hearing on President Obama’s nomination of Judge Merrick Garland to fill the vacancy on the Supreme Court created by the death of Antonin Scalia. In an unprecedented move, Grassley refused to take any action to fill the seat, claiming that it would be irresponsible to allow a president to have his choice of a justice considered with a presidential election occurring in just nine-and-a-half months. The seat was kept vacant until President Trump took office. Trump appointed Neil Gorsuch, who voted the majority on Friday.
Following the death of Justice Ruth Bader Ginsberg in September 2020, Grassley was one of the Republican leaders who pushed through Trump’s nomination of Amy Coney Barrett to the Supreme Court, even though there was a presidential election in slightly over one month, and early voting in the election was already underway in many states. Barrett also voted with the majority on Friday.
Grassley has insisted partisan politics played no role in his decision to block the candidate of a Democratic president, who made the nomination 293 days before an election, while backing the nominee announced by a Republican president 38 days before an election.
In a statement released by his Senate office on Friday, Grassley praised the majority decision in Dobbs as “meticulous and well-reasoned.”
ACLU of Iowa Legal Director Rita Bettis Austen called the Dobbs decision “shocking and dangerous” in a statement.
“Despite today’s devastating decision from the U.S. Supreme Court, we want to emphasize that abortion remains safe and legal in Iowa,” Bettis Austen said.
Abortion access in Iowa on shaky ground
Bettis Austen noted the U.S. Supreme Court’s decision comes just one week after the Iowa Supreme Court also rejected stare decisis to overturn a previous decision that found the Iowa Constitution recognized a person’s right to choose an abortion as fundamental aspect of their liberty. Iowa justices declared there is no fundamental right to an abortion in the state, and ordered a lower court to use the “undue burden” test created by Casey to determine if a law creating a 24-hour waiting period for an abortion violates the Iowa Constitution.
Because Friday’s Supreme Court decision only addresses the U.S. Constitution it will not have a direct impact on the lower court’s consideration of the waiting period law. But if the lower court decision is appealed to the Iowa Supreme Court, the justices — a majority of whom were appointed by Gov. Reynolds — would be free to discard the undue burden test because Casey has been overruled, and use a standard less likely to protect current established rights.
But before that decision will be made, it’s likely that Republicans lawmakers, if they retain control of both chambers of the Iowa Legislature in this November’s election, will pass a law making abortion either entirely illegal or close to that. There is also the possibility that Reynolds may call a special session before the end of the year to restrict or eliminate legal abortion in Iowa. The governor has refused to provide a direct answer to reporters’ questions about whether she would call a special session if the Supreme Court overturned Roe.
The governor has also refused to say if she would support banning abortion in cases involving rape and incest. Asked by a reporter in May if she would sign “a bill that would ban abortion in Iowa with no exceptions, if Roe is reversed,” Reynolds replied some of the standard pro-life rhetoric she uses to avoid giving a firm answer to such questions.
“You know, thank you for being here and thank you for asking me about that,” the governor replied. “I am pro-life, I am proud to be. I am going to do everything I can to defend the unborn, who can’t defend themselves. And so I’ve been pretty clear on where I stand on pro-life issues and I’m excited about the opportunity.”
We attached the Governor’s full comments here…plus a bonus question on abortion.
Sorry about the zoom in between questions. pic.twitter.com/IKAnGVLPiL
— Ethan Stein (@EthanSteinTV) May 5, 2022
But it’s not just state-level legislation to endangers Iowans’ reproductive rights There’s also the possibility a federal bans if Republicans retake one or both houses of Congress in November.
Just hours before Politico published the leaked draft of the Dobbs decision in May, the Washington Post reported some Republican senators plan to introduce a nationwide restriction on abortions after the Supreme Court overturns or guts the rights guaranteed to Americans since 1973 by Roe.
According to the Post, Sen. Joni Ernst is one of the leaders of that group.
A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.
Little Village also contacted Ernst’s Senate office for comment on the Post story, but never received a reply.
In a statement issued on Friday, Ernst praised the Dobbs decision for “rightly return[ing] policymaking power back to the American people and their elected officials.”
It’s worth noting that unlike other conservatives, Ernst did not say the decision had been returned to the states. She just said it was now with “elected officials.”