The Supreme Court announced the ruling on the case, which guaranteed abortion-rights for women across the United States, on Friday—ending the right to receive an abortion for millions of women living in conservative-led states. The move immediately sparked a wave of protests and criticism, including from Dershowitz.
During an appearance on Fox News, the former Harvard law professor condemned the decision as “judicial activism,” a term often used to describe the Supreme Court making policy decisions.
Dobbs v. Jackson, the case the Court ruled on that led to the overturning of Roe, involved the constitutionality of a Mississippi law banning abortion after a woman is 15 weeks pregnant—not a law that completely banned the procedure, Dershowitz explained.
The attorney argued that the Court overstepped its boundaries by completely overturning Roe v. Wade because the specific case dealt with only the 15-week ban.
“I do think the Supreme Court should never have had to reach beyond the 15 weeks,” Dershowitz said. “That’s what was before the Supreme Court.”
He said the Court should have waited “until a case comes before the Supreme Court in which a state says, ’no abortions,’ and then the Supreme Court could have overruled Roe v. Wade” and that it was “unnecessary to do it now.” He confronted Hannity, who like other conservatives has remained opposed to judicial activism on other cases, about why he supports the Court’s decision
Hannity, however, defended the ruling, and argued that he believed the Roe decision was unconstitutional to begin with. Fox News legal analyst Gregg Jarrett added that “there is nothing wrong with being proactive and examining the basis upon which the case is being litigated.”
“Rights not enumerated specifically in the Constitution, like the right to bear arms, which we discussed last night, then the 10th Amendment, Ninth Amendment would be applicable,” Hannity said, referring to the clause that leaves rights not specifically mentioned in the Constitution up to the states—though supporters of Roe v. Wade argue the right to privacy is protected under the Constitution.
Supreme Court ‘Exceeded’ Its Power
In a statement to Newsweek Saturday morning, Dershowitz wrote: “I appreciate Fox presenting diverse views—unlike CNN and some others. Hannity knew I would disagree with him because I did so on his earlier radio show.”
“The Supreme Court does not have the legitimate power to render advisory opinions about matters not necessary to resolve cases actually before them. It exceeded that power by going beyond upholding the Mississippi 15 week rule,” he added, and also pointed out that Supreme Court Chief Justice John Roberts took a similar view.
In his concurring opinion, Roberts wrote that while he ultimately agreed with the other conservative justices, he would have taken a more “measured course” on abortion.
“I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks,” Roberts wrote.
Roberts joined Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in agreeing on the resolution. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
Newsweek reached out to Fox News for comment.
