소수자 인권에 있어 Dobbs 판결의 의미와 반향

Abstract

On June 24, 2022, the United States Supreme Court effectively removed the right to abortion from the list of fundamental rights under the U.S. Constitution in Dobbs v. Jackson Women's Health Organization. The right to abortion had been considered a core right, derived from the Due Process Clause of the Fourteenth Amendment since its affirmation in Roe v. Wade in 1973, but it lost its constitutional value and stature in the U.S. federal legal system nearly half a century later. The debate and conflict surrounding the Dobbs decision echo the social unrest that the Roe decision, which first recognized abortion rights, initially induced.
 This article does not engage directly with the varied and contentious positions on abortion that rest on religious, moral, and political grounds. Rather, it seeks to discuss the impact of the Dobbs decision on the rights of minorities from the perspective of constitutional theory and judicial policy. The Dobbs decision not only directly affects the lives and rights of women in the United States, but it also potentially represents a critical turning point in the rights of minorities in general when viewed in light of the legal principles it espoused. Based on the Fourteenth Amendment (Due Process Clause, Equal Protection Clause), the U.S. Supreme Court has discovered a series of individual liberties and rights that are not explicitly stipulated in the constitutional text through interpretation, recognizing these as fundamental rights deserving of special constitutional protection. Restrictions or discrimination relating to fundamental rights are subjected to a high-intensity judicial review standard and are strictly controlled. The method and criteria for recognizing fundamental rights are extremely important in activating the human rights advocacy function of the U.S. Supreme Court and have a profound impact on minorities, who can only expect judicial protection as they cannot secure respect for their values and lifestyles in the political process governed by majority rule. The Supreme Court has long used ‘history and tradition’ as a key criterion in confirming fundamental rights, but the Dobbs decision applied this criterion in a more conservative direction. As a result, the decision curtailed the progressive trend observed in the fundamental rights analysis in the 2015 Obergefell v. Hodges decision, leading to what can be seen as a counter-revolutionary conclusion - ‘evicting’ the right to abortion from the list of fundamental rights. From this point, the Dobbs decision can be assessed as a rupture in the constitutional progress that the Supreme Court has made based on the Fourteenth Amendment's fundamental rights analysis, as well as a fracture in the role and function of advocating for minority rights that the Supreme Court has emphasized.