“At the end of the day, if you say something is unconstitutional you have to show me where,” said the Yale law professor. “Roe v. Wade says it is unconstitutional to prohibit abortion before viability, basically 22 weeks. If you look at the Constitution, it doesn’t say anything about abortion one way or another…. Roe v. Wade doesn’t even quote the language of the Constitution that it says is applicable, which in effect says that liberty and property can be restricted with proper legal procedures.”
In response to people who criticized the decision for upending Supreme Court precedent, Amar argued that the primary law of the land is the Constitution — not the precedents. In his view, decisions that do not arise from the Constitution itself should be “thrown overboard.”
“Precedents can and should be disregarded when they’re egregiously wrong,” he said.
Furthermore, he argues that judges must prioritize the Constitution over precedents because they take an oath to uphold the Constitution. To do otherwise would be to break that oath, in his opinion.
Amar critiqued the reasoning in Roe, saying, “Roe doesn’t have much support in constitutional text, in constitutional history, in the morays and customs of America at the time the case came down. It actually doesn’t have strong roots in pre-Roe precedents…. It’s never gained the kind of consensus support that many other decisions that were controversial when they were decided have gained.”
Amar believes that the Dobbs decision will not lead to the restriction of rights established by the Supreme Court, such as contraception or sodomy, because those decisions rely on the right to privacy — a right that does not apply to abortion cases.
Amar explained that abortion cannot be described as “private” because it involves “innocent, unborn human life,” and typically takes place in a medical clinic with a doctor present. Contraceptives, on the other hand, are a matter of privacy because they are used in the home within the intimate confines of a romantic relationship.
In 1973, the Supreme Court handed down its decision in Roe v. Wade. The opinion, written by Justice Harry Blackmun, held that abortions fell under the umbrella of privacy rights, which were protected under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The decision attempted to balance a “right to privacy” against the state’s interest in protecting women’s health and “the potentiality of human life.” In doing so, it decided that the state may not regulate abortions in the first trimester, can impose reasonable regulations related to maternal health in the second trimester, and may regulate or prohibit abortion entirely in the third trimester after the point of “viability.”
In the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed Roe v. Wade, and added an “undue burden” standard for deciding whether abortion regulations were constitutional.
Last Friday, the Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned both Roe and Casey by holding that the Constitution does not confer a right to abortion. States are now free to regulate or prohibit abortion in any way they see fit, and Congress may also pass federal legislation on the matter.
In the time since Roe was decided, over 60 million babies have been aborted. Alveda King, a niece of Martin Luther King Jr., called this a “crime against humanity” and argued that “nothing has wreaked havoc on the black community and destroyed black lives more than the abortion industry.”