Roe v Wade Overturned: Observations from CMDA Attorney and Ph.D. Historian

On June 24, 2022, the United States Supreme Court issued its opinion in Dobbs v Jackson Women’s Health Organization, which overturns Roe v Wade. Even as Supreme Court opinions go, it is a giant in size as well as societal impact. The opinion has generated a flood of commentary from voices on all sides of the abortion policy debate. Seemingly, not everyone commenting on the opinion has actually read it. The following quotations from the opinion encapsulate the holding.

• Page 69: “The Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
• Page 29: “[O]ur decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests.”
• Page 77: “Under our precedents, rational-basis review is the appropriate standard for … challenges [to abortion regulations].”
• Page 77: “State may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.”

The opinion is heavy on historical discussion. As a Ph.D. historian myself, I make the observation that the Court’s shift of abortion regulation to the States is precisely the “popular sovereignty” approach that Abraham Lincoln condemned in the context of slavery during the political debates of the 1850s.

The irony is that the individual States can now choose to allow abortion – on any terms they want – even to the point of abortion on demand at nine months gestation. Abortion rights advocates will be infuriated by the opinion. But in this sense it actually gives them something they want, i.e., an option for unfettered abortion rights. And the result in States like California, Washington, Oregon, Massachusetts or New York could be an expansion of abortion options. Under the reasoning of this opinion, statutes broadening abortion rights beyond what was allowed by Roe and Casey should also be afforded deferential rational-basis review.

Abortion opponents did not really get the result they want, because they want a declaration that the Constitution protects the unborn from abortion. In a very real sense, they got the opposite.

Doug Curlew is a partner in our Livonia office and head of the Firm’s appellate practice group. He concentrates his practice on appellate law, law enforcement defense, and insurance defense. He focuses on writing briefs for submission to all levels of state and federal courts, arguing cases in both the state and federal courts of appeals, and performing research for all areas of law handled by the Firm. Mr. Curlew obtained a Juris Doctor degree from Wayne State University Law School and a Bachelor of Arts degree from the University of Michigan- Dearborn. While practicing law, he also obtained a Ph.D. in history from the University of Michigan- Ann Arbor. He has been practicing law since 1986. He may be reached in our Livonia office at (734) 261-2400 or dcurlew@cmda-law.com.