Analysing Roe V. Wade And Its Overturn Through Dworkin And Barak’s Lens Of Statutory Interpretation
- IJLLR Journal
- Jul 18
- 2 min read
Surabhi Arora, Jindal Global Law School
ABSTRACT
This paper critically analyses the United States Supreme Court decision of Roe v. Wade and its 2022 overturning in the case of Dobbs v. Jackson Women’s Health Organisation, particularly through Dworkin’s and Barak’s methods of statutory interpretation. It also looks at the concurring and dissenting opinions in the latter case through an interpretative lens to further understand how the Justices have arrived at the decision that has overturned decades’ worth of progress in the reproductive rights of pregnant persons.
Statutory Interpretation of Roe v. Wade
It is crucial to understand what the source of the Constitutional right to abortion is in the United States. It is essentially a right that falls under the general right to privacy which grants the citizens the right to make personal, intimate decisions without undue State intrusion. This right to privacy is an ‘unenumerated right’ in the United States’ Constitution, a concept that Dworkin has outrightly rejected. It can be inferred that at the time of drafting it, the Legislators were well aware that by setting out a list of some of the rights that a citizen could conceivably claim, and not all, future governments might deny the citizens these rights that the Drafters believed to be fundamental. In the years leading up to Roe v. Wade, the Supreme Court fleshed out these unenumerated rights through cases like Griswold v. Connecticut which voided a statute that made it illegal for married persons to buy contraception. Through this, the Court essentially interpreted that the right to privacy was ‘implied’ by the Drafters in the First Amendment. Continuing in a line of cases, Roe v. Wade established a constitutional right to an abortion through the Fifth Amendment in 1973, which states that no person shall be deprived of the right to life, liberty and property, without ‘due process of law’.
