Race-based cases fueled flipping Roe v. Wade

(News4usonline) – As an attorney for the NAACP, former U.S. Supreme Court Justice Thurgood Marshall once fought a case centered on race and school segregation. Marshall and the NAACP’s Legal Defense Fund lost that case as two members of a three-judge panel in South Carolina, rebuked his equal protection argument.

Two of the three judges on that panel cited Plessy v. Ferguson, which endorsed school segregation with its separate but equal doctrine, as a reason to deny Marshall and the NAACP. That was way back in 1951. Plessy v. Ferguson found its way to the U.S. Supreme Court’s overturning Roe v. Wade, the historical case that paved the way for having an abortion a legal win for women across America.

Demonstrators hit the stress in downtown Los Angeles on June 24, 2022, to protest the U.S. Supreme Court’s decision to overturn the landmark abortion ruling, Roe v. Wade. Photo by Dennis J. Freeman/News4usonline

Four members of the U.S. Supreme Court outlined the framework for why the High Court took down Roe v. Wade, the judicial decision that Ok’d a woman’s right to choose on a federal level in alignment with the 14th Amendment. Justice Samuel Alito, Justice Clarence, Justice Brett Kavanaugh, and Chief Justice John Roberts said that is not the case.

“We end this opinion where we began. Abortion presents a profound moral question,” argued Alito in the prevailing opinion of the Court. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

And so in an earth-shattering decision on June 24, the Supreme Court, in a 5-4 ruling, overturned Roe vs. Wade. In excerpts taken from the opinions of the three justices, the right to an abortion is not rooted in the U.S. Constitution and its traditions and must be settled at the state level between the people and their respective elected officials. The Supreme Court’s decision in Dobbs v. Jackson Women Health Organization reached far and wide and has caused an immediate fallout with thousands of Americans hitting the streets in protest.

Alito, who wrote the prevailing opinion for the six justices in favor of nullifying Roe vs. Wade, lamented several different ways why the High Court struck down the landmark 1973 decision on abortion. His initial thoughts circled around the issue that the U.S. Constitution does not endow the right to an abortion.

High-profile attorney Gloria Allred talk to protesters on June 24, 2022, about her own abortion experience after being raped. Photo by Dennis J. Freeman/News4usonline

“We hold that Roe and Casey must be overruled,” Alito stated in his opinion. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion does not fall within this category.”

Justice Alito mentions five mitigating factors why Roe v. Wade was flipped.

“In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance,” wrote Alito. “The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. Dividing pregnancy into three trimesters, the Court imposed special rules for each.”

In ruling against Roe v. Wade, the Supreme Court effectively took away a right for women to choose, something the Court acknowledges, but believe is a right governed by individual states and not the federal government. Rolling back a precedent is rare but not unheard of for the Supreme Court.

Demonstrators at Los Angeles City Hall. Photo by Dennis J. Freeman/News4usonline

Both Justice Alito and Justice Thomas listed several times the Court overruled a precedent. Both men cited Plessy v. Ferguson and the Brown v. Board of Education, both cases centered on race, as examples.

“Some of our most important constitutional decisions have overruled prior precedents,” Alito said. “We mention three. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. Id., at 488 (internal quotation marks omitted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule.”

In his supporting opinion to obliterate abortion, Justice Thomas left no doubt where he stands on the matter.

“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion,” Thomas wrote. “Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall deprive any person of life, liberty, or property without due process of law.”

“The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of liberty protected by the Due Process Clause. Such a right is neither deeply rooted in this Nation’s history and tradition nor implicit in the concept of ordered liberty.”

After Roe was made the law of the land in 1973, the Casey v. Planned Parenthood case that was decided in 1992, reaffirmed the right for women to have an abortion. Justice Kavanaugh, in his concurring opinion, talked about the difference between Plessy v. Ferguson and Brown v. Board of Education against Casey v. Planned Parenthood as it related to the analysis of Casey’s stare decisis.

The day after the U.S. Supreme Court overturned Roe v. Wade, protesters made their way to the steps of City Hall in Los Angeles on June 25, 2022, to voice their angst over the ruling. Photo by Dennis J. Freeman/News4usonline

“Although Casey is relevant to the stare decisis analysis, the question of whether to overrule Roe cannot be dictated by Casey alone,” Kavanaugh said. “To illustrate that stare decisis point, consider an example. Suppose that in 1924 this Court had expressly reaffirmed Plessy v. Ferguson and upheld the States’ authority to segregate people on the basis of race. Would the Court in Brown some 30 years later in 1954 have reaffirmed Plessy and upheld racially segregated schools simply because of that intervening 1924 precedent? Surely the answer is no.”

Justice Thomas would also invoke the infamous Dred Scott decision as part of his argument.

“Substantive due process is often wielded to “disastrous ends,” Thomas said. “For instance, in Dred Scott v. Sandford, the Court invoked a species of substantive due process to announce that Congress was
powerless to emancipate slaves brought into the federal territories. While Dred Scott “was overruled
on the battlefields of the Civil War and by constitutional amendment after Appomattox, that overruling was “[p]urchased at the price of immeasurable human suffering.”

Featured Image: Demonstrators in Los Angeles, California, display their rage following the U.S. Supreme Court overturning Roe v. Wade on June 24, 2022. Photo by Dennis J. Freeman/News4usonline