Ever since the argument before the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization on Dec. 1, there has been much speculation about whether the Supreme Court will overturn Roe v. Wade completely or only “partially.”
But no matter what the Court decides in Dobbs, Roe will not be completely overturned.
When my colleagues speak of “overturning” Roe, they’re actually referring to only one of Roe’s holdings: the ruling that the Due Process Clause of the 14th Amendment creates a right “to terminate a pregnancy.” In Dobbs, the Court will rule in one of two ways concerning Roe. Either Mississippi’s statute that prohibits abortions after 15 weeks will be upheld but the right to terminate a pregnancy will be preserved in some form or the Court will find that there is no right to an abortion at all.
In either event, Roe would only be partially overturned because there were two other holdings found in Roe, one express, the other by implication. Both are of grave importance and neither is raised nor argued in the Dobbs case.
Roe found that there is a class of human beings who do not possess any constitutional rights at all — a class singled out to be excluded from the Equal Protection Clause of the 14th Amendment. That holding was largely based upon the Court’s statement in 1973, before the explosion in DNA and ultrasound technology, that it was unknown whether the unborn child was a whole, separate, unique, living human being. It couldn’t be said “when life begins,” the Court argued.
But there was also a third implied holding. The Roe Court completely ignored the pregnant mother’s intrinsic fundamental 14th Amendment right to maintain her relationship with her child, a right that may be a mother’s greatest right in all of life other than her right to life. The consequence was that the Court failed in Roe and in subsequent abortion cases to address the minimum protections states must accord pregnant mothers to ensure that the termination of their rights is voluntary and informed.
If the Court overturns Roe‘s holding that there is a “right to terminate a pregnancy,” such a ruling will be very significant, but it will be just an essential first step to achieving a proper interpretation of our Constitution.
It will be a holding that provides no constitutional protection for the true rights of pregnant mothers and no constitutional protection for the intrinsic rights of their children in utero. Thus, the most critical of Roe‘s holdings will remain in place. At least for now.
There were comments made by some of the justices during the Dobbs oral argument that some of my colleagues thought evidenced that they don’t fully understand the experiences of pregnant mothers subjected to an abortion.
First, they assumed that every pregnant mother at an abortion clinic was there voluntarily or that she preferred to keep her child but did not know where to get the help she needed. Second, the comments seemed to suggest that the Court gave no thought about the fact the mother who is subjected to an abortion loses something of great value for herself, that her cherished relationship with her child is irrevocably terminated.
Those of us in the pro-life community who work in the trenches know that many pregnant mothers are coerced into abortions they don’t want. We have witnessed the unique pain suffered by a mother who forever loses her child to involuntary or uninformed abortion.
The argument in Dobbs evidences that we have the responsibility, now more than ever before, to bring those experiences to the attention of the Court.
A case currently in the Eighth Circuit Court of Appeals does exactly that.
The burden has always been on those of us who work with those mothers to bring their experiences before the courts. The burden is on us to teach.
There is a great teaching case currently in the Eighth Circuit Court of Appeals.
For the past 17 years, South Dakota has been the one state that has consistently presented and litigated issues relating to the plight of those pregnant mothers and their children. In Planned Parenthood v. Rounds, South Dakota won multiple decisions in the U.S. Court of Appeals that relate to the two holdings of Roe other than the one implicated in Dobbs.
Rounds held that abortion terminates the life of a whole, separate, unique, living human being and upheld South Dakota’s required disclosure before abortions that a pregnant mother has an existing relationship with the child she carries, a relationship protected under the United States Constitution, and that the abortion terminates that existing relationship. The decision also held that abortion places a pregnant mother at increased risk for suicidal ideation and suicide.
In subsequent litigation, Planned Parenthood v. Noem, which is currently in the Eighth Circuit, South Dakota is defending its statutes designed to protect pregnant mothers from being coerced into having abortions they do not want. Some court observers have stated that the record in that case is the best ever created in an abortion case. The issues of the child’s equal protection rights, the mother’s right to her relationship, and the due process requirements to protect that right are at hand. The record consists of 3,200 pages of affidavits and documents that establish that pregnant mothers are often coerced into abortions. This is the teaching case the courts need to see.
In 2015, the South Dakota Legislature passed a joint resolution that listed all of its grievances with Roe v. Wade and Planned Parenthood v. Casey, and how those decisions prevent the legislature from discharging its sacred obligations to the women and children of its state. In that resolution, the legislature observed:
If there are any self-evident and universal truths that can act for the human race as a guide or light in which social and human justice can be grounded, they are these: that life has intrinsic value; that each individual human being is unique and irreplaceable; that the cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty; that the intrinsic beauty of motherhood is inseparable from the beauty of womanhood; and that this relationship, its unselfish nature and its role in the survival of the race is the touchstone and core of all civilized society. Its denigration is the denigration of the human race. This relationship, its beauty, its survival, its benefits to the mother and child, its benefits to society, all rest in the self-evident truth that a mother is not the owner of her child’s life — she is the trustee of it.
In that concurrent resolution, the legislature observed that abortion was a means for men to exploit women.
Some modem feminists have made the very same observation. In an interview with the New Republic in 1992, Australian feminist Germaine Greer said:
It is typical of the contradictions that break women’s hearts that when they avail themselves of their fragile right to abortion they often, even usually, went with grief and humiliation to carry out a painful duty that was presented to them as a privilege. Abortion is the latest in a long line of non-choices that begin at the very beginning with the time and the place and the manner of lovemaking.
South Dakota’s Anti-Coercion Statute recognizes that abortion is often carried out at the demand of an exploitive man and it protects the pregnant mother against the demands of those men.
In Rounds, South Dakota disposed of Roe’s antiquated quirk that the Court did not know “when life began.” Modern technologies establish that the unborn child is a whole, separate, unique, living human being from conception. As a result, South Dakota and 28 other states consider it homicide to kill an unborn child at any age after conception, punishable in South Dakota, and many other states, by life imprisonment. No longer can the Court claim that science doesn’t know “when life begins” or that the law treats the child in utero as something other than a ”whole person.”
Having the Supreme Court declare that there is no right to an abortion is only a starting point in the effort to win justice for pregnant mothers and their children. There can be no doubt that a declaration that our Constitution does not guarantee “a right to an abortion” is an important moment. But it is merely the brushing aside of an irritant that stood in the way of going forward to win justice for all the children of the nation.
Yes, some “red states” will pass legislation to ban abortion. That will only mean that abortions will not be done on their own soil. No women and children in “blue states” will be protected. And women in red states can travel to states that permit legal abortions. In addition, some states are powerless to outlaw all abortions because their state supreme courts have ruled that their state constitutions create a right to have an abortion. Among those states are Alaska, Florida, Iowa, Kansas, and Montana. Merely overturning Roe‘s holding about a “right to an abortion” does nothing for them.
Brushing aside the irritant of Roe‘s holding that there is a “right to an abortion” is just the start of our real work to ensure justice. Roe must be completely overturned.
The South Dakota case currently in the Eighth Circuit is the only case addressing the issues necessary to “completely overturn” Roe v. Wade. It is the teaching case the courts need to see.
Harold J. Cassidy is a New Jersey-based attorney.