Undoubtedly, it is one of the few cases that have defined the nation and its legal perspective. It is said to be a case which importance and significance belongs on the Mount Rushmere of US law, along with Marbury v Madison which established the judicial review, Brown v Board of Education which started the beginning of the end of segregation by derogating the doctrine “separate but equal” and Miranda v Arizona which established the notorious Miranda rights.
However, after nearly 50 (fifty) years of the landmark decision, the US Supreme Court in this year’s term overturned the ruling, holding that there is no longer a federal constitutional right to an abortion.
The Supreme Court opined that Roe v Wade and the inherent decision in Planned Parenthood v Casey, did not achieve the goal to end the national division when it comes to abortion. The Court stated that American continue to hold passionate and widely different views on abortion, and that States have acted and legislated in different manner accordingly.
To that end, the Supreme Court concluded that the issue of abortion – in their view being more political than legal issue – must be returned to the people’s elected representatives. The Court referred to Justice Scalia remarks in Casey, where he stated that “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”.
The Supreme Court ruled that the question of abortion as a right cannot be inferred from the Constitution. As stated in the decision, the Supreme Court clarifies that the Constitution makes no reference to abortion, and that no such right is implicitly protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment.
The Fourteenth Amendment was the legal basis for constituting the right to an abortion when the Supreme Court was ruling on Roe v Wade. In fact, the Due Process Clause is the source of plethora of constitutional rights that the citizens enjoy. In accordance with the legal jurisprudence in US, the Due Process Clause is interpreted in two categories, as Procedural Due Process which concerns the procedures that the government must follow and obey before taking action against a person, and Substantive Due Process that relates to substantive rights that are explicitly enumerated, but also implicitly derive from the Constitution.
It is fair to say that generally conservative judges, which are now the majority in the Supreme Court, challenge and oppose the substantive due process interpretation that inherently requires broader and liberal interpreting of the constitution.
Thus, in the decision to overturn Roe v Wade it was not surprising that this Supreme Court was averse to holding the legal rationale of Roe v. Wade that the right to privacy derived from the Fourteenth Amendment protects a pregnant woman’s choice regarding abortion. The Supreme Court by virtue of stare decisis, looked at a precedent in Washington v. Glucksberg (1997), to point out that the right to an abortion even if attempted to be inferred as done in Roe v Wade, cannot be the case because such right must be “deeply rooted in the Nation’s history and tradition. . .and implicit in the concept of ordered liberty”. The Supreme Court proceeded to explain that the right to an abortion does not fulfill that requirement because before Roe v Wade, abortion was largely prohibited in most of the States, and as such has no link to the traditions of the nation.
This leads to legal implication that scholars raise regarding the decision. Namely, even if these retroactive historical inquiries about the traditions prior to Roe v Wade are considered, still the fact remains that since Roe v Wade was decided, almost fifty years have passed. During these years, the Supreme Court upheld the decision in Casey and did not overturn it in prior cases when Roe v Wade was challenged in any way. That kind of legal practice for that period of time, de facto in a way creates tradition and legal certainty that the Supreme Court with this decision ignores.
Furthermore, as embodied in the decision, the Supreme Court opines that this question as a moral and political one, should not be decided by the Supreme Court, but it should be left to the States and its elected officials. Although the Supreme Court should not moralize or politicize its decisions, in the same decision the Supreme Court has contradictive views. While the Supreme Court states that the substantive right to an abortion derived from the Fourteen Amendment is unfounded, attempts to clarify that other decisions that are subject to the same rationale where substantive rights are inferred, are not compromised by this decision.
Most notably, the right to intimate sexual relations, the right to contraception, to marriage, etc., are rights established with legal reasoning akin to the one in Roe v Wade. Nonetheless, the Supreme Court states that, abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being”.
Тhe Supreme Court attempts to distinct between those rights and the right to an abortion, only due to the fact that fetal life exists in this case, but without any legal clarification about the difference in materiality between the cases. Certainly, there is an evident argument that the Supreme Court includes its own morals in this decision, in a same way as they claim the Court did in Roe v Wade.
Legal scholars said the decision to overrule Roe is one of the few times the Supreme Court has ever invalidated an earlier decision that declared a constitutional right – and certainly the only time it took away a right that had considerable public support.