Available in Russian
Author: Danil Mamaev
Keywords: Supreme Court of the United States; abortion; stare decisis; majority opinion; dissenting opinion; legitimacy; originalism
In December 2021, the Supreme Court of the United States heard arguments in the case of Dobbs v. Jackson Women’s Health Organization. Mississippi’s Gestational Age Act, which prohibited abortions after 15 weeks of pregnancy, was subject to constitutional review. On June 24th, 2022, the Supreme Court issued its opinion having held that the U.S. Constitution does not guarantee a right to abortion. In doing so, the Court overruled two landmark decisions – Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey – issued by the Court in 1973 and 1992, respectively. The author of this article attempts to trace these developments chronologically and to put the Supreme Court abortion jurisprudence in both legal and political contexts. The primary part of the article is an analysis of the Dobbs decision, namely the majority opinion, several concurring opinions, and the dissenting opinion. Based on the text of the decision and points made by legal scholars in academic works and public comments, the author identifies factual and methodological flaws in the majority opinion and speculates how exactly the overruling of these landmark precedents might affect other constitutional rights guaranteed by the Supreme Court both before and after 1973. Analyzing the legal consequences of the Dobbs decision, the author concludes that the returning of the issue of abortion to the states does not simplify the situation, but, on the contrary, potentially invites a large number of jurisdictional disputes between the states, overflowing the federal court system. It is also noted that federal lawmakers could codify the right to abortion. However, taking into account the current political environment and the balance of power in the U.S. Congress, this scenario does not seem very plausible. Finally, the author discusses whether the legitimacy crisis of the Supreme Court is a part of a global trend and whether there might be a future need to reimagine the very institution of constitutional review.
About the author: Danil Mamaev – 2nd Year Graduate Student, Master’s Program “Constitutional and Legal Problems of Organization of State and Local Government in the Russian Federation”, Law Faculty, Lomonosov Moscow State University, Russia.
Citation: Mamaev D. (2022) I nastupit t’ma: Konstitutsiya SShA teper’ ne zashchishchaet pravo na abort [And the darkness has come: the U.S. Constitution does not protect the right to abortion anymore]. Sravnitel’noe konstitutsionnoe obozrenie, vol. 31, no. 4, pp. 154–174. (In Russian).
(1967) Reagan Reluctantly Signs Bill Easing Abortions; California Becomes 3d State to Liberalize Curbs — Law’s Effect Delayed. The New York Times, 16 June. Available at: https://www.nytimes.com/1967/06/16/archives/reagan-reluctantly-signs-bill-easing-abortions-california-becomes.html (accessed: 18.07.2022).
(2022) Meet the Man Who Helped Build the Court that May Overturn Roe. NPR, 21 June. Available at: https://www.npr.org/2022/06/21/1106363363/meet-the-man-who-helped-build-the-court-that-may-overturn-roe (accessed: 18.07.2022).
Cohen D.S., Donley G., Rebouché R. (2022) The New Abortion Battleground. Available at: https://scholarship.law.pitt.edu/fac_articles/517 (accessed: 18.07.2022).
Gans D.H. (2022) Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion. SMU Law Review Forum, vol. 75, pp. 191–211.
Gerstein J., Ward A. (2022) Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows. Politico, 2 May. Available at: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 (accessed: 18.07.2022).
Ginsburg R.B. (1992) Speaking in a Judicial Voice. New York University Law Review, vol. 67, no. 6, pp. 1185–1209.
Gupta A.H. (2020) Why Ruth Bader Ginsburg Wasn’t All That Fond of Roe v. Wade. The New York Times, 21 September. Available at: https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-roe-v-wade.html (accessed: 18.07.2022).
Hasday J.E. (2022) On Roe, Alito Cites a Judge Who Treated Women as Witches and Property. The Washington Post, 9 May. Available at: https://www.washingtonpost.com/opinions/2022/05/09/alito-roe-sir-matthew-hale-misogynist/ (accessed: 18.07.2022).
Khramova T., Troitskaya A. (2021) Nekotorye voprosy ne imeyut otvetov, ili Delo o preryvanii beremennosti [Questions without answers, or Тhe Abortion сase]. Mezhdunarodnoe pravosudie, vol. 11, no. 1, pp. 13–42. (In Russian).
Marcus R. (2020) Supreme Ambition: Brett Kavanaugh and the Conservative Takeover, New York: Simon & Schuster.
Murray M. (2021) Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade. Harvard Law Review, vol. 134, no. 6, pp. 2025–2102.
O’Harrow R., Jr., Boburg S. (2019) A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation’s Courts. The Washington Post, 21 May. Available at: https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/ (accessed: 18.07.2022).
Reid T.R. (1980) Reagan Is Favored by Anti-Abortionists. The Washington Post, 12 April. Available at: https://www.washingtonpost.com/archive/politics/1980/04/12/reagan-is-favored-by-anti-abortionists/f89c94bf-4e00-4674-b91c-c1f10a6aea15/ (accessed: 18.07.2022).
Rubin L. (2022) The Leaked Draft Has a Fatal Flaw. And It’s Even Worse than You Think. MSNBC, 12 May. Available at: https://www.msnbc.com/rachel-maddow-show/maddowblog/the-leaked-draft-has-a-fatal-flaw-and-its-even-worse-than-you-think-rcna27416 (accessed: 18.07.2022).
Shabecoff P. (1976) Ford-Carter Stands on Abortion Held Similar, With One Exception. The New York Times, 21 September. Available at: https://www.nytimes.com/1976/09/21/archives/fordcarter-stands-on-abortion-held-similar-with-one-exception.html (accessed: 18.07.2022).
Sullivan A. (2022) Explainer: How Abortion Became a Divisive Issue in U.S. Politics. Reuters, 25 June. Available at: https://www.reuters.com/world/us/how-abortion-became-divisive-issue-us-politics-2022-06-24/ (accessed: 18.07.2022).
Sullivan K. (2022) White House Press Secretary Says Using Federal Lands for Abortion Services Would Have “Dangerous Ramifications”. CNN, 28 June. Available at: https://edition.cnn.com/2022/06/28/politics/white-house-federal-lands-abortion/index.html (accessed: 18.07.2022).
Tang A. (2022) Op-Ed: The Supreme Court Flunks Abortion History. Los Angeles Times, 5 May. Available at: https://www.latimes.com/opinion/story/2022-05-05/abortion-draft-opinion-14th-amendment-american-history-quickening (accessed: 18.07.2022).
Totenberg N. (2009) Tape Reveals Nixon’s Views on Abortion. NPR, 23 June. Available at: https://www.npr.org/templates/story/story.php?storyId=105832640 (accessed: 18.07.2022).