DAILY SIGNAL: The Dobbs Decision, Explained


The U.S. Supreme Court overturned its abhorrent Roe v. Wade decision Friday, upholding a Mississippi law in the landmark Dobbs v. Jackson Women’s Health Organization case.

  • How did the justices reach their decision?
  • What is its historic significance?
  • And what comes next for the pro-life movement?

On this bonus episode of “The Daily Signal Podcast,” Tom Jipping, a senior legal fellow for the Meese Center for Legal and Judicial Studies at The Heritage Foundation, answers those questions and more.

Read a lightly edited transcript of the interview below or listen to the episode.

Rob Bluey: What do you want our listeners to know about today’s landmark ruling?

Tom Jipping: It is an important decision, obviously. I think people need to focus not only on its result. And, of course, people have their own views about abortion and whether human life should be protected before birth. But when it comes to the Supreme Court doing something, let’s say rather than Congress doing it, we also need to focus on how it was done.

The fact is an anyone who thinks that the Supreme Court was wrong today in overruling Roe v. Wade, I think they have an obligation to explain why. They have an obligation to explain why Roe v. Wade was correctly decided, why it was an appropriate interpretation of the Constitution.

It’s not enough just to say, “I think abortion is OK and therefore I want what I want,” or something. We ought to expect our government institutions to operate with integrity and to do things the right way.

Roe v. Wade was probably the most disgraced, undermined, criticized, embarrassing decision in the history of the Supreme Court. And its biggest critics have been constitutional scholars who support access to abortion.

None of us ought to want to have a flawed, really egregiously wrong decision like that on the books—no matter what our opinion about abortion.

Correcting that mistake, even if it took 50 years to do it, I think that’s a good day. And people now need to focus on the hard work of interacting with our fellow citizens about an issue that’s this challenging so that the decisions are made the way they’re supposed to and that’s in our legislatures.

Bluey: What is the historical significance of today’s ruling? Obviously there have been other precedents that the court has overturned, which were wrongly decided. How does this stack up compared to those?

Jipping: As Justice [Samuel] Alito wrote in this decision, no justice of the Supreme Court has ever said that the Supreme Court should never overrule a precedent. The Supreme Court has overruled itself more than 200 times. And the Supreme Court is open to doing that when they’ve attempted to interpret the Constitution.

The only way to correct a mistake like that would be to amend the Constitution, which is almost impossible. Or the Supreme Court has to admit its mistake and correct its error.

And so this is something the Supreme Court does all the time. They should be open to doing it. They don’t do it recklessly. I mean, the Supreme Court’s had probably 26 or 27 abortion cases over 50 years and now they’re finally doing it. So it’s not like this was a really rushed, hasty decision, but it is was egregiously wrong. And Justice Alito explained why.

I really encourage everyone to read it. Today there really isn’t any excuse for not doing stuff like that because it’s so easy to get your hands on the opinions. It’s on the Supreme Court website, read it. I realize it was written by a judge. And it’s in a little bit of legalese here and there. But read it, because the opinion that’s there explains the decision and that’s the best way to understand what the court did.

Bluey: I know you and others were excited to see what was in the draft opinion. Obviously, probably like me, you were disheartened that it leaked in May, but encouraged by some of the language that Justice Alito had used in the draft opinion. Did it substantively change from the time that we saw that leak versus what came out today?

Jipping: The leak was the first time anything like that had happened and was really a bad day for the Supreme Court as an institution. But if there was any silver lining, it was that there was a majority to address the right issues in the right way, coming to the right conclusions.

This official final opinion is probably 95% the same. It includes a section where Justice Alito responds to the dissenting justices. Those would be [Justices Elena] Kagan, [Sonia] Sotomayor and [Stephen] Breyer. And, of course, that wasn’t possible in the draft. Other than that, it’s basically the same. There’s strong language there. There’s a repeated assurance that this decision has nothing to do with other rights.

Don’t believe anyone who says that this is the first domino to fall and [Speaker] Nancy Pelosi was today claiming that, well, what’s next and all of that. No, the Supreme Court made it clear this is about abortion.

Abortion is unique. Even Roe v. Wade said abortion is inherently different than other rights. Why? Because it destroys an unborn child. And that’s a moral dilemma that doesn’t exist in any other situation. So we’re glad that the majority held and the opinion stayed the same. It was a strong opinion then, and it’s a strong opinion now.

Bluey: Let’s go back to the facts of the case at hand, Dobbs v. Jackson Women’s Health. Share with our listeners how this case came to the Supreme Court in the first place, and what were some of the arguments that they were weighing as they heard arguments?

Jipping: Roe v. Wade said that the Constitution protects the right to abortion. Late in pregnancy a little bit, but primarily before what the Supreme Court called viability, which is when a child can survive outside the womb.

Justice Alito points out in his opinion today, the court made up this idea of viability. None of the parties in Roe v. Wade suggested it. They didn’t argue it. They didn’t brief it. Justice [Harry] Blackmun just kind of thought it up on his own. But that became the heart of Roe v. Wade—that the state may not prohibit abortion before viability.

If you’re going to challenge that as Mississippi wanted to do, they would have to have a ban on abortion before viability. Viability is at about 24 weeks. They passed a law banning it at 15.

And so the Supreme Court, when they accept a case, the party that’s asking them to do that presents, usually, several legal questions. And here there were three.

One of them was, are bans before viability unconstitutional? That’s the only question that the Supreme Court accepted. And that was a good sign because that means that they were going to test whether the central thing that remains of Roe v. Wade was still, no pun intended, viable. So that was the issue. And that’s the issue on which the court accepted it.

They heard oral arguments back in December. And if the date on the draft, which was early February, it only took a couple of months to write that majority opinion. What took longer were the dissenting opinions. But that’s how they challenge Roe. Roe said nothing before viability pass a law that bans abortion before viability. Therefore, to decide the case, the court’s going to have to say whether Roe is good or bad and it’s bad.

Bluey: There were five justices on the draft opinion who stuck together. But then you had Chief Justice John Roberts, who issued a concurring opinion. Where does he factor in here?

Jipping: The decision to uphold the Mississippi law was 6-3. Chief Justice Roberts agreed that was constitutional. But the decision whether doing so required overruling Roe was 5-4.

The chief justice did not believe that upholding that law required overruling Roe v. Wade. He had indicated something along those lines during the oral argument. He had kind of floated a alternative theory or whatever.

Neither side, neither the abortion clinic nor the state of Mississippi, took the bait. They both said you either have to say “yea” or “nay” on Roe v. Wade. And frankly, that’s the big disappointment in this for me, is that the chief justice was trying to make up something else.

It’s like Roe v. Wade made up something, Planned Parenthood v. Casey in 1992 that tried to save Roe made up something else. And now the chief justice wants to make up something else.

The Supreme Court isn’t supposed to make stuff up. If that decision correctly interprets the Constitution, fine. But if it doesn’t, then it doesn’t belong, period. And there was nothing left of Roe v. Wade, even Planned Parenthood v. Casey called, “The essence of Roe,” is what they were hanging onto.

As silly as that is, that’s nothing. And the chief justice should have just agreed to let it go.

Bluey: How about the three dissenting justices—Breyer, Sotomayor, and Kagan? What did they say in their dissent?

Jipping: Their dissent was very much like Roe v. Wade. Which is, they didn’t even attempt to claim that it was correctly decided. They didn’t really even try, as Alito pointed out.

The Supreme Court’s been clear if you’re going to say that there’s a right that is not written in the Constitution, you have to show that the language that the court has used, that it’s deeply rooted in our nation’s history and tradition. So if it’s not actually written in the text, it’s at least got to have deep and long roots in our country, which abortion clearly doesn’t have.

The dissenters didn’t even try to argue otherwise. They tried to do what Roe did, which is to say, “We think access to abortion is a good thing. And for various reasons, women ought to have access to abortion.”

Justice Alito, he really highlighted that the one thing the dissent struggled not to do was to, was to talk at all about the unborn child. About how the state has an interest in protecting human life. That’s all they wanted to do, was to focus on the interests of women and why women would want abortions. That’s really at the heart of all of this.

I don’t think we should have to ignore one or the other. I think we can have public policies that protect human life and help women, babies, and families. I don’t think those are mutually exclusive. And yet the dissent really did what pro-abortion advocates have always done, which is to ignore the unborn child.

Bluey: What myths do you think we’ll hear from the left and Democrat politicians? You mentioned Speaker Pelosi earlier. What else should be aware of and be able to push back on aggressively?

Jipping: One that I mentioned was they’ll say this is only the beginning, right? That this is the first right, that there’s other dominoes that are going to fall. They’re going to go after same-sex marriage, they’re going to go after contraception, they’re going to go after all of these other things. They know that’s not true.

Justice Blackmun in Roe v. Wade said it wasn’t true. That this decision is about abortion alone. So that’s going to be a very common one. And there’s going to be horror stories about what prohibiting abortion is going to do to women.

The fact is, though, this is a very different country than it was 50 years ago, various public policies and cultural changes, not all of which are positive, but have made the opportunity to deal with pregnancies and even to not have to be a mother if you don’t want to be. Those opportunities are greatly expanded from what they were in 1973.

My colleague in the Meese Center, Sarah Perry, and I wrote a paper on this case last fall. And she wrote quite a bit in there about these changes and about how women have many different ways of dealing with unwanted pregnancies than they used to. …

>>> Dobbs v. Jackson Women’s Health Organization: An Opportunity to Correct a Grave Error

One thing that’s kind of disheartening, I think, is you see posters and signs at these protests saying, “Abortion is essential,” and, “Protect abortion.” Abortion kills babies. We can’t ever forget that. And so this is an important opportunity to decide what our values are, whether our law should reflect our values and what it means to be pro-life.

Bluey: When I was at the court earlier, there were several protesters, many, in fact, who were carrying signs that said they would “aid and abet abortion.” You just have to wonder if they really understand what their signs actually mean—that is the taking of a human life. So I appreciate you pointing that out.

So where do we go next? What does this decision mean for individual Americans, the states, and even potentially the federal government?

Jipping: During 50 years when legislative efforts to protect the unborn were not really popular, the pro-life movement only grew and grew so that they could protect unborn children and help mothers in other ways. That’s very important. We’ve got to see the pro-life movement as a broad comprehensive approach to this. It’s not just the Supreme Court. It’s not just laws. Every one of us has a role. And there’s something we can do along those lines.

Specifically, though, overruling Roe v. Wade simply means that now legislatures, the states primarily, but also Congress, can, or they may … pass laws to protect unborn children. So on that front, that’s what happens next.

Now there’s two categories of laws, ones that were on the books, so to speak, before Roe v. Wade. Those were kind of put on hold and not all of them were repealed. Some of those will come back into effect. And then there are new laws. Some states also have laws that are going to protect abortion.

There are things that both state legislatures and Congress can do. I believe government at all levels should do everything that the Constitution allows to protect the unborn. That ought to be our goal as far as the legislative portion of our efforts going forward.

Bluey: So in some ways the hard work is just beginning.

Jipping: Oh, absolutely.

Bluey: The American people now have it in their hands to talk to their legislators.

Jipping: We’ve been anti-Roe v. Wade for 50 years and focused a lot on that. But thankfully, not exclusively because now that goal is achieved, the real pro-life work begins. And it is very comprehensive. It’s not just ending abortion.

It won’t be a culture of life even if, let’s say, all abortions are prohibited and there aren’t any abortions happening. That still doesn’t mean it’s really a genuinely pro-life culture. So we do have a lot of work to do, and we can now get to more of it than we could yesterday.

Bluey: One of the other hats that you wear at The Heritage Foundation is the work you do on Judicial Appointment Tracker. So I’d be remiss if I didn’t ask you the significance of President [Donald] Trump’s appointments to the Supreme Court and what those mean to the outcome of this decision today.

Jipping: I would emphasize, I know that President Trump talked about his appointments to saying, “They’re going to vote against Roe v. Wade.” Well, he didn’t know that and he didn’t pick them because they promised that. He picked them because they have an approach to the Constitution that says judges shouldn’t make things up. And Roe v. Wade was made up.

It’s no surprise to me that the three justices that he appointed—[Neil] Gorsuch, [Brett] Kavanaugh, and [Amy Coney] Barrett—who do have that judicial philosophy, who say we ought to look at the text of the Constitution and it ought to mean something, would resist a decision like Roe that was just pure fiction. Right? We ought be thankful for that.

Obviously, though, do the math. Justice [Anthony] Kennedy, who Kavanaugh replaced, for example. In 1992, he refused to vote to overturn Roe v. Wade. Barrett obviously replaced [the late Justice] Ruth Bader Ginsburg, who clearly would’ve voted to uphold Roe v. Wade, and probably want to go even further. So do the math, those justices created that 5-4 majority to overrule Roe.

Bluey: Tom, thank you so much for your analysis today. Appreciate your coming in here just moments after the decision was handed down.

Jipping: You’re very welcome.

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