After nearly 50 years, US states once more have the power to ban abortion. This follows a decision by the US Supreme Court in Dobbs v Jackson Women’s Health, which struck down the 1973 decision in Roe v Wade, and declared: “Our decision returns the issue of abortion to those legislative bodies.”
On its own terms, Dobbs is one of the most significant supreme court decisions of this generation. Almost immediately, abortion clinics across the US were closed, as state legislatures, anticipating the decision, had set up “trigger laws” to ban abortion as soon as Roe was overturned. The last abortion clinic in the southern state of Mississippi has now shut down.
But, this decision carries significance beyond its immediate impact on US women. It hints at the possibility of a highly significant turn in supreme court precedent. By shrinking what is understood as a right under the US constitution, the court creates a patchwork of rights, based on state residency. This would entail a dramatic reversal of a democratic process, begun after the American civil war, to establish and expand a national standard of rights.
It could mean the end of a national rights in many areas of life that Americans take for granted, such as marriage or contraception. To understand the wider significance of this decision, we must turn to the origins of the US constitution itself.
The first constitution was a disaster, as it gave too much power to the states. The Articles of Confederation, which governed the US from 1781 to 1789, insisted that state governments remained supreme in “every power, jurisdiction, and right”, except for those “expressly designated to the United States”. With the federal (national) government having virtually no authority of its own, a “stalemate government” was the result. Congress was unable to address the major policy questions of the day, leading to a complete loss of public confidence, disarray, and, after just eight years, total collapse.
The second constitution has lasted a bit longer. It replaced the articles in 1789 and remains today. Known simply as the US constitution, the federal government was given exclusive authority over major policy areas, as well as broad powers over economic regulation. The writing of this constitution was an effort to strengthen national government authority over the states.
But the drafters of this second constitution had a problem. It needed the consent of the very states who would lose many of the substantial powers which they had enjoyed under the first constitution. A compromise was devised. A series of amendments would be tacked onto the constitution, which would constrain the federal government against limiting individual rights (amendments one to nine) and preserve state authority (amendment ten) on matters not relating to the federal government.
These ten amendments, which were later called the Bill of Rights, established barriers to federal government action. The federal government could not establish a national religion, limit the freedom of speech or press, install soldiers in citizens’ homes without their permission, seize personal papers and effects without a warrant, convict a citizen without a trial by jury, impose excessive fines, inflict cruel and unusual punishment, and much else. The ninth amendment clarified that the preceding eight amendments were not an exhaustive list and that “the people” retained “other rights”, as well.
None of these restrictions initially applied to state governments. Some states had established churches, such as the Congregational Churches of Massachusetts and Connecticut. Some restricted the free exercise of religion, with New Hampshire insisting that state legislators could only be Protestants and Maryland banning atheists from public office. Some states criminalised certain forms of speech. In North Carolina, for example, a person could be put to death for advocating the abolition of slavery. It was only North Carolina’s defeat in the civil war (1861-65) that brought this law to an end.
Pushing back against state powers
After the civil war, new efforts were made to weaken the power of state governments, who had used them for deeply oppressive ends, especially on the basis of race and religion like those listed above. Radical reformers in Congress and the states passed the 14th amendment in 1868. It specified that the restrictions on federal government actions against the rights to “life, liberty, and property” also applied to the states.
Certain individual rights which are necessary for there to be a due (fair) process of law-making must therefore apply equally against state governments as they do the federal government. In many cases, it is obvious what these rights entail. There clearly cannot be a due process of law if state governments are entitled to censor the press or limit reasonable religious expression.
Equally, there is clearly no due process of law if a citizen is not entitled to a jury trial, protected from self-incrimination, given access to legal counsel, subjected to double jeopardy, denied a speedy trial, placed under excessive bail, or victimised by cruel and unusual punishment. The court has incorporated all of these rights against the states, and they remain likely to endure.
However, many legal experts argue that the due process clause of the 14th amendment does not simply protect the rules of a fair democratic process. It also protects certain fundamental liberties, which no government – state or federal – can restrict. This doctrine is known as “substantive due process”.
Substantive due process was the basis on which abortion rights existed in the US until this year. In 1973, in Roe v Wade, the supreme court argued that the right for a woman to terminate her pregnancy was a fundamental liberty, which neither the states nor the federal government could restrict in its early stages. In Dobbs v Jackson Women’s Health (2022), the court ruled that there was no such right under the constitution. This has revived the states’ right to regulate, and even ban, abortion. This could potentially affect other rights.
For example, the court has used substantive due process to prevent states’ ability to prohibit marriage between people of different races (Loving v Virginia, 1967) and of the same sex (Obergefell v Hodges, 2015). Similarly, the court has found that certain intimate acts, such as the use of contraception (Griswold v Connecticut, 1965) or consensual sexual activity between people of the same sex (Lawrence v Texas, 2003), are fundamental liberties protected by this clause.
In the Dobbs decision, Justice Samuel Alito said none of these rights were under threat, but this reassurance is not convincing. Members of the court openly disagree. Justice Clarence Thomas wrote in his opinion on Dobbs: “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is demonstrably erroneous.”
Should this thinking take hold on the court, the end of a federal right to an abortion will only be the beginning of the revival of state government power and the weakening of national standards of rights.
Richard Johnson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.