The U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization ruling has elicited mixed reactions from around the world. In this article, I would not like to focus on developing my moral argument, but rather on explaining to the reader unfamiliar with the case law the rationale for the ruling. In the background of the case we are faced with a Mississippi law that banned most abortions after the fifteenth week of pregnancy. The only abortion clinic in the state, Jackson Women's Health Organization, sued public officials before the federal judiciary, claiming that the law violated U.S. Supreme Court precedents conferring a right to abortion before the viability of the fetus: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). After successive instances, the matter reached the Supreme Court, which on June 24 issued a landmark decision overruling these precedents. The question on which the ruling focuses is the following: why should Roe and Casey be overruled? The argumentation offered in this regard is, in my opinion, exceptionally rigorous.

Let us begin with Roe v. Wade. The press has echoed the harsh assertion with which Dobbs anticipates his verdict at the outset: "Roe was scandalously wrong". To justify this unusually harsh judgment, the Court reviews the constitutional standards on which Roe was based:

a) There is no reference letter right to abortion in the American Constitution. To defend it, one would have to show that it is implicit in other guarantees, and that is what Roe attempted to do. Specifically, he stated that it is part of the right to privacy, a right that is also not mentioned in the Constitution. We are therefore faced with the creation of an implicit right in another implicit right. Even the implied right presupposed in Roe, however, has never been well grounded. When, in Griswold v. Connecticut (1965), the Court affirmed the existence of a general right to privacy, it said that it was emerging from the "penumbras formed by emanations" of various rights, an evanescent interpretive method that leaves no boundary safe.

b) In Roe v. Wade, the Supreme Court thus started from the right to privacy created eight years earlier, and stated: "Whether founded on the 14th Amendment's concept of liberty staff (...), as we feel it is, or whether founded (...) on the 9th Amendment's reservation of the people's rights, this right to privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy". According to sample Dobbs, such an assertion does not stand up to scrutiny:

(1) The 9th Amendment refers generically to a group of rights that, even if not expressly set forth in the Constitution, would have been "retained by the people." This clause, however, does not at all say that abortion is one of those rights.

(2) The 14th Amendment, for its part, prohibits depriving citizens of their "liberty" without "due process of law." This is a procedural clause, and taking it as a substantive clause is itself subject to controversy. Even accepting that this is so, the mere word "liberty" does not constitute a rigorous legal parameter as a basis for creating a right to abortion. The jurisprudence requires an added entrenchment that Roe completely ignored. Dobbs is correct in asserting that, although Roe referred to the "feeling" that the clause at stake was the 14th Amendment, his "message" was that the right to abortion could be found "somewhere in the Constitution," and specifying its location would not be of crucial importance.

2. Another issue Dobbs examines is exactly what right Roe v. Wade created. The Supreme Court took a trimester approach to abortion, placing the most critical moment at the beginning of the third trimester. It did so on the basis that in 1973 the fetus was considered "viable" outside the womb at about that time. Only after viability did the State's interest in protecting the fetus become "urgent".

The truth is that this is a criterion that lacks legal support, since it depends on the Degree of development technical and the quality of the available facilities -which would force to modify the limits of the right depending on the place where it is performed-. Moreover, viability itself is gradable according to the greater or lesser chances of survival of the fetus. Viability considerations have little to do with the dignity of the unborn or the legitimate degree scroll of the mother. With express warning of this inconsistency, intellectuals such as Peter Singer advocate "moving towards" infanticide, which shows that the lack of solid principles places us on a slippery slope.

For reasons such as these, Roe v. Wade has been widely regarded as an erratic decision, as explained in Dobbs. One Kennedy-appointed justice called it an exercise of "naked judicial power." John H. Ely, Harvard's famed progressive constitutionalist, went so far as to say that it was "not Constitutional Law", and that it "gave virtually no sense of being forced to pretend to be." In similar terms, finally, many prominent prochoice jurists expressed themselves.

3. In 1992, the Supreme Court again confronted the issue in Planned Parenthood v. Casey. It substantially upheld the Roe decision, although it introduced modifications in an attempt to save it from inconsistency. As for the basis rules and regulations, the new decision focused on justifying abortion as a "liberty" protected by the 14th Amendment. To do so, however, the case law requires, as Dobbs explains, that it be a liberty "deeply rooted in national history and tradition." Abortion, however, had generally been considered unlawful until Roe v. Wade, as reflected in the writings of all the major common law authorities, as well as in state legislatures until about that decision. The consensus was overwhelming, which is "devastating" to the position of the dissenting judges. They are forced to defend the "entrenchment" of the law created by Roe on the sole basis that it was created by Roe and upheld thereafter. But that is not justifying its creation.

4. Finally, the main obstacle Dobbs faces is the so-called stare decisis or doctrine of judicial precedent. According to agreement with this doctrine, the invalidation of precedent should be viewed with caution. This obviously does not imply that precedent is absolute. The Supreme Court lists a long list of invalidated precedents and stops at annulments that, although in their day were traumatic for some sectors, today represent unanimously celebrated moral milestones -for example, the prohibition of racial segregation in Brown (1954), which annulled a precedent that had been in force for more than 60 years-.

Yet it is unobjectionable that, to overturn decades-old precedent, one must make a very strong case for its error; and this is, in my view, what the ruling does. Dobbs v. Jackson demonstrates that both Roe and Casey lack a sound basis in text, history, and prior precedent; and, as a corollary, it restores to the states the regulatory power that those decisions robbed them of. The Court has not struck down a constitutionally granted right to abortion; rather, it has declared that the Constitution, the "We the People" expressed therein, has never admitted this right, and has never deprived the states of the ability to protect the unborn at their various stages of development.