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End of Roe: Glaring blight on judicial legitimacy, progressive democracy | Ryan Wozniak

Tuesday, June 28, 2022 @ 10:51 AM | By Ryan Wozniak

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Ryan Wozniak
The fight over abortion rights in the United States has always been far more political than legal. The U.S. Supreme Court’s scandal-ridden decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade was made not because of evolutions in the principles of constitutional interpretation or after careful judicial deliberation, but simply because one group of justices had secured more votes than the other. The court’s granting of certiorari in Dobbs was a Trojan Horse: once in the building, the new majority of highly conversative Trump-appointed justices could finally slay the beast they had been chasing for decades.

Indeed, the Dobbs case began as an unremarkable challenge to a garden-variety Mississippi abortion law, the Gestational Age Act, which banned any abortion after the first 15 weeks of pregnancy, with exceptions for medical emergencies or severe fetal abnormalities, but none for cases of rape or incest. A federal district court immediately issued an injunction enjoining Mississippi from enforcing the Act. The court’s decision was unanimously upheld by the Fifth Circuit Court of Appeals on the basis of Roe.

Mississippi appealed to the U.S. Supreme Court in 2020. The court officially released its decision last week overruling Roe and Planned Parenthood v. Casey, the court’s 1992 ruling that preserved it. The majority opinion, written by Justice Samuel Alito, found that the U.S. Constitution makes no reference to abortion and that no such right is implicitly protected by any constitution provision, including the Fourteenth Amendment. Alito wrote that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

The majority’s ruling is the conservative antidote to the court’s perceived liberal poison in Roe, in which it held that a woman’s right to an abortion is grounded in a “right to privacy” emanating from the Fourteenth Amendment, which states that no “person” shall be deprived of “life, liberty, or property, without due process of law.” The court’s findings in Roe were anchored in a line of earlier court decisions establishing the principle of “substantive due process,” which allows courts to protect certain “fundamental rights” from government interference, even if they are unenumerated in the Constitution, such as those “implicit in the concept of ordered liberty” or “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

From a strictly legal point of view, neither camp presents a particularly convincing argument. On the one hand, it is true that the Fourteenth Amendment says nothing about “privacy” or reproductive rights. As the late American law professor John H. Ely put it, “the Justices had not found the right to abortion in the Constitution. They had put it there.”

However, it is also true that a strictly originalist interpretation of the U.S. Constitution exposes the court to serious credibility problems, particularly in the realm of gun rights. For example, it is very difficult, if not impossible, to conclude that the founding fathers contemplated hundreds of millions of Americans walking the streets with semi-automatic assault rifles, none of which existed in 1787. If one applies an originalist interpretive approach to the Second Amendment, then the “right of the people to keep and bear Arms” entitles a person to carry no more than a musket or a flintlock pistol.

The court’s see-saw approach to these defining questions of constitutional law has left it dangerously exposed to claims that it is merely the cat’s paw of political interest groups. It has apparently lost interest in preserving or prioritizing its legitimacy within the delicate ecosystem of America’s constitutional framework, as famously articulated by Chief Justice John Marshall in 1803 in Marbury v. Madison.

However, the most tragic aspect of the Roe journey, in my view, is that the final verdict on reproductive rights was ever left to the court in the first place. This is a matter that ought to have been settled through the legislative process. That a putatively advanced democratic society cannot find the political will come together to enact national legislation that puts a dagger through the heart of unabashedly misogynistic laws and that squelches once and for all the toxic vestiges of antiquated male-centric ideologies is far more concerning than the credibility of any legal argument. The Dobbs decision is not so much an alarming inflection point in American constitutional jurisprudence as it is a dog whistle for divisive interest groups in a country that is already plagued by deep racial, social and economic fissures.

In his concurrence, Justice Clarence Thomas essentially took out a classified ad inviting further attacks on established Fourteenth Amendment rights. Justice Thomas argues that the court did not go far enough in Dobbs: he proposes a complete dismantling of all the court’s substantive due process precedents, including decisions that protect the right to contraception, sexual intimacy and marriage equality for gays and lesbians.

Dobbs also has consequences beyond America’s borders. The Supreme Court has put its imprimatur on a virulent strain of regressive social conservatism that is threatening the legitimacy of democratic institutions across the globe and has signalled tolerance for further erosions and outright withdrawals of entrenched legal rights minted in the progressive liberal mould, such as the right to due process of law, to fair hearings and to the right against self-incrimination.

All this to say that Dobbs is an abject tragedy, both legally and socially. It marks a horrific setback for the women’s rights movement. That the Supreme Court is content with state lawmakers forcing a woman who is raped to bear the child of her attacker is, in this author’s opinion, utterly repugnant and grotesquely misogynistic. According to the National Sexual Violence Resource Center, 91 per cent of rape victims in the U.S. are female.   

Fundamentally, the matter of abortion rights comes down to a single question: Should a woman have the ability to control her own body, to decide for herself when and if to become a mother, and to control her own destiny and be truly free?

The answer is, and must be, an unequivocal “yes.”

Ryan Wozniak is the principal of Wozniak Law P.C. He practises civil litigation in Toronto.

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