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What Just Happened in the United States

The Supreme Court of the United States just issued a very significant decision. Lots of people are saying lots of things about it. As usual, these range from informative to worryingly incorrect. This is my attempt to simplify what just happened (and what did not), and to give a few pointers on how other lawyers might see the decision. 

I must preface this discussion by noting that I am beyond thrilled to see everyday people make the effort to read and engage with a Supreme Court decision. I encourage you to read the decision in its entirety. The Justices made an effort (as they now generally do) to use accessible and clear language. We should all be able to understand Supreme Court decisions, and you probably will.

First, here's what the Supreme Court did not do. It did not outlaw abortion because it can't. Women will still be able to get an abortion, somewhere, sometime (more on that later). In 1973, the Supreme Court had issued another decision, Roe v Wade. You've surely heard about it because it's brought up every time a Supreme Court Justice gets nominated. Senators ask whether they will overrule Roe v Wade, and the aspiring Justice refuses to directly or adequately answer the question (which is legitimate because of ethical rules that apply to judges). Roe v Wade said the Constitution prevents the government from restricting access to abortion at some stages of pregnancy. In some, generally left-leaning, states (think New York or California), that didn't change anything because the government wasn't looking to regulate abortion access anyway. In some, generally right-leaning, states, it did. Laws that limited access to abortion were suddenly invalid and couldn't be adopted because they would violate the Constitution. On June 24, 2022, in Dobbs v Jackson, the Supreme Court overruled (changed its mind on and cancelled) Roe v Wade. We are back to the state of the law before 1973. States are no longer prevented from limiting access to abortion. Some will. Some won't.

That's part of the problem. Yes, you can get an abortion – as I mentioned above, somewhere, sometime. If you live in, say, Mississippi, which passed the law that got the Supreme Court to consider the issue, you can fly to New York or California and get an abortion. Of course, if you're poor, you won't. Lots of people think that's not fair. If you're poor, you also have other barriers along your path. For example, taking a few days off might be impossible or might get you fired from your job. (That's one of the reasons why arrests, jail, and bail disproportionately affect the poor.) In that sense, the decision is regressive. It imposes the burden of child-rearing on poorer women, which is known to contribute to keeping them in lower-paying jobs. 

Back to Roe. The thing most lawyers won't tell you about it is that they don't think it makes a great legal argument. I'm a law professor that works in Canada. I'm also a Christian with deeply held, personal beliefs on abortion. (Like four of the five lawyers in the Dobbs majority, I'm also of a gender that is physiologically prevented from fully understanding what I'm opining on.) Over time, I've come to think that, as a matter of public policy, full, unrestricted access to abortion is better than every other alternative. I still think that Roe does not make a great legal argument. I suspect, and this should be flagged as speculation, that most lawyers share the same view. (The Dobbs majority agrees.) In that sense, Roe remained particularly vulnerable. Courts get things wrong all the time. That's one of the reasons we have so many of them. The Supreme Court is also prone to  completely changing its mind on very important issues. In 1896, in Plessy v Ferguson, the Supreme Court said racial segregation was constitutionally permissible. Then, in 1954, in Brown v Board of Educationall nine judges on the Supreme Court adopted exactly the opposite position. Needless to say, if they hadn't, the United States would be a very different place.

By now, you have a fancy law professor telling you abortion is good, but Roe isn't convincing. It looks as though this is purely political. Roe was a way for left-leaning people like the law professor to impose their view on everyone else by bending the Constitution. These were also lazy left-leaning people because they could have done the legitimate, more difficult thing: get a majority of their peers to change their mind and vote for laws that reflect their view. That's exactly what (just under) half of the country, and the Dobbs majority, think.

So what about the other half? Well, there are surely people who think Roe makes a good legal argument. There are also people who believe that those who oppose abortion are ignorant. But there's another thing we call stare decisis. Like many others, it is a Latin phrase that helps lawyers justify how much they charge for their time. It would translate to something like "respect for things decided." Courts should follow prior decisions as much as possible. Why? First, it's how laws usually work. If the government passes a law, you can usually assume it won't change the next day. You can plan your life, and your business affairs, accordingly. When judges create law through what we call the common law, or by issuing a new interpretation of the Constitution, we would also expect the new principle not to change the next day. Again, there is a political underpinning. If it changes the next day, it looks like the judges are just making things up. It looks like they issue law that matches their personal views, just like politicians, when they shouldn't – because, unlike politicians, they are unelected lawyers. As you can imagine, these arguments are very strong when made regarding a case that was decided almost 50 years ago. Since then, people have relied on access to abortion, and society has changed dramatically.

Regardless of which side you're on, you would expect a precedent that has stood for almost 50 years to be dealt with very carefully. The Dobbs majority, and just under half of America, would respond that they did. They think Roe was just so wrong ("egregiously wrong") that it needed to be overruled. They would say they showed courage by applying the law regardless of the political impact or underpinning. It happened before. Recall the segregation cases. Stare decisis did not prevent the Court from changing its mind. Something similar happened in 2015, in Obergefell v Hodges, as the Supreme Court essentially legalised same-sex marriage. The interesting thing about this is that reversing prior precedents generally happens in a way that favours the political left. In that sense, Dobbs is unusual. And what you think of it might well depend on your ideological preferences.


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