In 2022, in the Dobbs v. Jackson decision, the US Supreme Court overturned nearly 50 years of legal precedent by reversing the Roe v. Wade decision which had limited state restrictions on a woman’s right to have an abortion. James Rice writes that since the Dobbs decision, a number of often contradictory lawsuits have been issued and state laws enacted, including efforts to ban the abortion drug, mifepristone, and IVF services. With the Supreme Court’s recent record of overturning precedent, state-based ballot initiatives may be key to upholding reproductive rights in the US states.

Having designed and taught a university course on ethics from 2008 to 2018, I have been fortunate enough to have had the opportunity to introduce undergraduates to some of the most fundamental moral theories, from Socrates through to John Rawls. As a central part of the course, I challenged my students to confront specific ethical problems. Inevitably, students tended to be most interested in problems surrounding the topics of sex and death.

Apart from the death penalty, the single most popular issue among students was abortion. Much of the available literature came not from Hong Kong (where I was teaching) but from the United States. As such, the landmark US Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973) was an important part of the reading.

The end of Roe v. Wade

However, a few years after my teaching career had ended, the entire landscape of the debate over reproductive health changed. In June 2022 (and nearly 50 years after the ruling) the Supreme Court, led by Chief Justice, John Roberts, reversed Roe in the case of Dobbs v. Jackson Women’s Health Organization, 597 U. S. The majority opinion, written by Justice Samuel Alito struck down the law in Roe, leaving the question of a woman’s right to an abortion up to the individual states.

In the nearly two years that have followed it, the Dobbs decision has created not only great confusion and acrimony, but also led to a hodgepodge of confusing and contradictory law.

It had been claimed by some (including Justice Alito and former President Donald Trump) that the Dobbs decision would go some way to reduce the highly polarized views around this issue. As the former president stated in September 2023:

We’re going to agree to a number of weeks or months or however you want to define it, and both sides are going to come together and both sides — both sides, and this is a big statement — both sides will come together. And for the first time in 52 years, you’ll have an issue that we can put behind us.

This consensus was not to be achieved, however. Following the Dobbs ruling, the divisiveness surrounding the issue didn’t recede, but rather, has intensified, with any number of cases around the edges (including those involving rape, incest, and pregnancies of girls as young as 10) suddenly being brought before the courts and the public.

The collateral from Dobbs

Following the Dobbs decision, it appears that these cases were not as exceptional as had been thought, and when they arise, in many instances the authorities and health officials have been reluctant to offer abortion services to the individuals affected. According to Scientific American, approximately 64,000 pregnancies have resulted from rape in states where abortion bans include “no exceptional circumstances”.

“DSC09284” (CC BY-NC 2.0) by Overpass Light Brigade

The mifepristone controversy

In addition to heightened and conflicting public opinion surrounding abortion itself, other linked reproductive health-related issues began to come before state courts. One such issue included questions involving birth control measures, such as the early pregnancy abortion medication, RU-486 or “Mifeprex” (the brand name for mifepristone). In April 2023, U.S. District Judge Matthew Kacsmaryk in Texas ruled that the Food and Drug Administration (FDA) had acted improperly when it had first approved the abortion pill mifepristone in 2000. This decision would have had the effect of taking the drug off the market in all 50 states.

Within days of the Texas decision, U.S. District Judge Thomas O. Rice (no relation) issued a ruling in a separate case in Washington State. That case had been filed by 17 separate states as well as the District of Columbia in which the petitioners sought a writ of certiorari to block the FDA from pulling the drug from the market. While for now, the matter is left largely to the states, with medication abortion being banned in 15 states and only allowed as prescribed by a physician in 21 states, a case is currently before the Supreme Court which will determine how patients can access mifepristone. During the case’s oral arguments at the end of March, the Court’s justices seemed skeptical about rolling back access to the drug.

The LePage IVF case

In addition to the chaos surrounding the mifepristone issue, another judicial decision (this time before the Alabama Supreme Court) has arisen in the case of James LePage, et al. v. The Center for Reproductive Medicine and Mobile Infirmary Association, ALSC-2022-0515. The facts involved the defendant Center for Reproductive Medicine, which had provided inter vitro fertilization (IVF) services in the city of Mobile Alabama. Here, a patient improperly accessed the cryogenic freezer where frozen embryos were stored. Four sets of embryos were inadvertently destroyed and the plaintiffs (the clients who had lost embryos) sued the Center for wrongful death.

In its majority decision the Alabama Supreme Court held that the destroyed embryos were in fact children, “without any exception based on developmental stage, physical location, or any other ancillary characteristics, therefore nothing would exclude unborn children located outside the uterus from the law.” In his decision Chief Justice Tom Parker wrote: “life begins at conception and that therefore frozen embryos are protected under the law. Human life cannot be wrongfully destroyed without incurring the wrath of a holy God who views the destruction of His image as an affront to Himself.”

The Court’s decision had an immediate (and chilling) effect on IVF clinics across Alabama and in several other jurisdictions. Subsequently however, seeing the wider implications that this case would inevitably have, several Republican lawmakers tried to dissociate themselves from the decision, issuing statements in favor of IVF procedures, including Donald Trump who expressed his broad support: “Under my leadership, the Republican Party will always support the creation of strong, thriving, healthy American families.”

The moral allure of the ‘best outcome’

By early 2024, the presumptive presidential nominee of the Republican Party appeared to be backing away from the Alabama Supreme Court’s position of reproductive absolutism, which his own US Supreme Court appointees had brought to life. Here, Trump is apparently adopting a consequentialist approach to the problem, in much the same manner as many of my former students presented their essays.

Typically, this would include the moral position adopted by philosopher Gertrude Anscombe who argued that whether an action is right is best judged by what its consequences are. Here, disposing of live embryos is morally acceptable in the course of a couple being able to have a baby.

Yet all this political deflection flies in the face of the ruling of the Alabama Supreme Court which ruled that every single embryo possesses the same moral and legal status of a living child. If one adopts the position that life and personhood begin at the moment of conception, then any IVF treatment would be practically unacceptable as it would risk the incidental loss of what Judge Parker ruled to be human children. However, if one adopts the consequentialist position, namely one that allows for a “best possible outcome” solution, one which can accept incidental loss of life in the pursuit of the greatest happiness for the greatest number, then how is this policy position so different from that of Roe? We recall in that decision, the Court also attempted to strike a balance between the best interests of two competing claims, i.e., the interests of the woman and her bodily autonomy (allowing abortion during the first trimester) and the potential life based on the point of viability of the fetus.

But it seems that the former president and others are trying to have it both ways. On the one hand they seek a policy that facilitates couples having children, even with the inevitability of losing embryos, and on the other, a rigid policy that seeks to ban all abortions as per the laws of individual states. But this leads to another question. If abortion really is the moral issue that pro life advocates claim it to be, then even the decision in Dobbs is not acceptable as it allows for Roe v. Wade legislation in states that choose to adopt it.

It is now becoming clearer as to the degree of legislative and judicial chaos that the US Supreme Court decision in Dobbs has created. Even as Republican legislators find themselves to be at odds with each other on the issue of IVF treatment, other unanticipated issues are likely to emerge creating even more legal and political turmoil including that of contraception.

The groundwork for Roe

Some 50 years earlier, the 1973 Supreme Court decision ruled that a woman has a qualified right to an abortion under the Constitution. In doing so, the Court referred to the “due process clause” in the Fifth Amendment and to the case of Griswold v. Connecticut, 381 US 479 (1965). This case involved a 1879, Connecticut law that banned the distribution and use of contraceptives. The Plaintiffs had opened a birth control clinic in New Haven and subsequently they were arrested and prosecuted. In its decision, the Supreme Court ruled that the Connecticut statute violated a couple’s right to marital privacy, which is guaranteed under the due process provision of the Fifth Amendment, the operative words being, “(no one shall be) deprived of life, liberty, or property, without due process of law.”

In its decision in Roe, the Court relied on the right to privacy as also found under the 14^th Amendment as well as Griswold and then spelled out the degree to which abortion rights could legitimately be regulated.

The ratio in Roe

In the decision in Roe, the Supreme Court tried to strike a balance between the government’s interests in protecting the woman’s health and that of prenatal life by preventing limits on abortion unless the woman’s health was impacted or in cases of fetal viability if the pregnant woman’s life or health was not threatened.

Subsequently in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) the Supreme Court reaffirmed the decision in Roe and prohibited state legislatures from banning abortion prior to viability.

Alito’s basis for the Dobbs decision

In 2022, the Supreme Court overturned Roe (and together with it, Planned Parenthood v. Casey) and ruled that the Constitution does not confer a woman’s right to an abortion. In so doing, the issue was passed back to the individual state legislatures.

Judge Alito’s opinion stated that rights not specifically enumerated in the Constitution may only be protected under the due process clause if, they are “deeply rooted in this Nation’s history and tradition.” This phrase, “deeply rooted in this Nation’s history and tradition” appears 16 times in the Dobbs decision and forms a pivotal part of its reasoning in terms of the Court’s justification for overturning precedent. Alito found that a woman’s right to an abortion was not deeply rooted in the nation’s history and traditions, as was the case with the purported right to contraceptives, interracial marriage, and same-sex marriage.

In distinguishing Griswold, the Court in Dobbs sought to avoid the perception that it would also seek to restrict other similarly protected rights. The Court cited the cases of Eisenstadt v. Baird, 405 U. S. 438 1972 (the use of contraceptives among unmarried couples); Loving v. Virginia, 388 U. S. 1 (1967) (the right of interracial couples to marry); and Obergefell v. Hodges, 576 U. S. 644 2015 (the right to same-sex marriage). “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents.”

Why would we trust them?

However, given that none of those rights just enumerated are in the words of Justice Alito, regarded as being “deeply rooted in this Nation’s history and tradition,” the question then becomes, how can the Court’s assurance be taken seriously? The Roberts Court in the Dobbs decision overturned a precedent of nearly 50 years that had been affirmed and reaffirmed. In their confirmation hearings before the Senate Judiciary Committee, the three Trump nominees all admitted as much. In responding to questions on his views on the decision in Roe, given before the Senate Committee, Judge Brett Kavanaugh testified that Roe is “is not as if it is just a run of the mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”

And yet this “precedent on precedent” was reversed. Justice Alito flatly dismissed the issue of precedent:

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

But if one is to apply the Court’s own “deeply rooted” standard, then how was the decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ever justified? The Supreme Court in the Brown decision ruled that the Equal Protection Clause of the 14^th Amendment prohibits states from segregating public school students based on race, thus overturning the “separate but equal” doctrine that had been established in Plessy v. Ferguson 163 U.S. 537 (1896) which was law of the land since the ruling.

Photo by Ian Hutchinson on Unsplash

But wasn’t the odious doctrine of segregation as set out in Plessy also deeply rooted in the nation’s history and traditions? Moreover, for “constitutional originalists” like Justice Alito, it must be the case that segregation did not violate the widely accepted interpretation of the 14^th Amendment subsequent to the time it was ratified. What the decision in Dobbs fails to distinguish is the moral point that sometimes things that are deeply rooted in a nation’s history are virtuous, and worth preserving (such as equality before the law). However, sometimes things that become deeply rooted in a nation’s history are pernicious, such as slavery and racial discrimination and cry out to be reversed.

When the LePage IVF case is appealed to the Supreme Court, the question is whether the Alabama decision will be dismissed or upheld. Here, the court has the option (as in Dobbs) of allowing the matter to be left to the authority of the states. In that scenario, the door would be open for state legislatures to attempt to roll back the right not only to abortion and contraception but also to same-sex marriage, or for that matter, interracial marriage. In their dissenting opinion, Justices Breyer, Sotomayor, and Kagan wrote:

Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

Ballot initiatives may be key in upholding reproductive rights

In the recent case of Planned Parenthood Arizona v. Mayes, (CV-23-0005-PR) the Arizona Supreme Court reinstated a law first passed in 1864, which banned abortions at any time in all cases except to save the life of the mother. Just one week earlier, on April 1, 2024, Florida, the Supreme Court ruling in Planned Parenthood of Southwest and Central Florida v. State of Florida, SC 2022 1050, upheld a six week ban on abortion. At the same time however, the Court allowed a referendum on the issue to be placed before the voters in November 2024. This opening to allow a popular vote may prove decisive in the matter of restoring a measure of moderation in this highly fraught issue.

In a postscript to Dobbs, “The People” have consistently voted to uphold reproductive rights in the months following the decision. Ballot measures such as statewide referenda from Kansas, Wisconsin, Kentucky, and Michigan have demonstrated that voters will turn up and vote to oppose efforts to negate or roll back women’s reproductive rights. 

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