Supreme Court Overturns Roe v. Wade, Undoing Constitutional Right to Abortion

·7 min read
Supporters and opponents of abortion rights demonstrate outside the U.S. Supreme Court Building on June 23, 2022 in Washington, DC. Decisions are expected in 13 more cases before the end of the Court's current session. (Photo/Shuran Huang)
Supporters and opponents of abortion rights demonstrate outside the U.S. Supreme Court Building on June 23, 2022 in Washington, DC. Decisions are expected in 13 more cases before the end of the Court's current session. (Photo/Shuran Huang)

Supporters and opponents of abortion rights demonstrate outside the Supreme Court Building in Washington on June 23, 2022. Credit - Shuran Huang for TIME

The U.S. Supreme Court has overturned Roe v. Wade, striking down the constitutional right to abortion established in the landmark ruling nearly 50 years ago.

On June 24, the high court ruled that pre-viability bans on elective abortions are constitutional, with Justice Samuel Alito writing the majority opinion joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts filed his own opinion concurring in the judgment that pre-viability bans can stand, but declining to overturn Roe. The court’s three liberal Justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—dissented.

After nearly half a century of constitutional protections for abortion, the ruling fundamentally reshapes access to reproductive health care across the U.S. Thirteen states have already enacted “trigger laws” that are designed to ban all or nearly all abortions once Roe is overturned, and those will now go into effect—some immediately and others in the coming hours and days. More bans are expected to come soon. At least nine other states have laws on the books they will likely try to put into effect, according to an estimate from the Guttmacher Institute, a research center that supports abortion rights, and others are considering special legislative sessions to introduce new restrictions in response to the ruling. Oklahoma had already outlawed nearly all abortions before the Supreme Court ruled, and other conservative-led states moved to advance bans of their own following a historic leak of a draft opinion in May that previewed the seismic shift to come.

Read More: What the Supreme Court’s Abortion Decision Means for Your State

“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided,” Alito wrote, comparing Roe to the case that established the “separate but equal” doctrine used to justify segregation for decades.

“A right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito also wrote in the majority opinion. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

The decision largely reflects the draft opinion authored by Alito and first reported by Politico on May 3.

The three liberal Justices authored the dissent. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” the Justices wrote. They decried the impact the decision could have on the legal doctrine of stare decisis, which states that courts must adhere to legal precedent even if they disagree with it, except in exceptional circumstances. The three liberal Justices argued that in overturning Roe, the Supreme Court betrayed “its guiding principles.”

Chief Justice Roberts also invoked stare decisis in his concurring opinion, in which he said he would take “a more measured course” than the path of the majority. He agreed that the “viability line” established by Roe—which barred states from banning abortions before the point around 24 weeks of pregnancy when a fetus can survive outside the womb—should be “discarded,” writing “that line never made any sense.” But he said he would not go as far as to overturn Roe itself. “The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” Roberts wrote.

In the majority opinion, Alito argued that Roe and 1992’s Planned Parenthood v. Casey—which affirmed the right to abortion while creating a new test requiring restrictions on abortion access to not pose an “undue burden” on the person seeking an abortion—were exceptional cases that merited breaking from stare decisis. “Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

The case, Dobbs v. Jackson Women’s Health Organization, centered on a 2018 Mississippi law banning most abortions after 15 weeks of pregnancy, a direct contradiction of the precedent established in Roe. A federal district court and the conservative U.S. Court of Appeals for the Fifth Circuit both struck down the Mississippi law for violating Roe, but when the state appealed the case to the Supreme Court, the Justices decided to review the case. The move came as a surprise to lawyers on both sides. Once the case reached the high court, Mississippi argued not just in favor of its law, but also for the Supreme Court to fully overturn Roe and Casey.

Read More: Meet the Pharmacist Expanding Access to Abortion Pills Across the U.S.

On June 24 the Supreme Court agreed, overturning both Roe and Casey and ruling the Constitution does not grant the right to abortion access.

The decision is a sweeping victory for the conservative legal movement, which developed in the 1970s and ’80s, in part through opposition to Roe. The Supreme Court’s stunning decision in Dobbs marks the culmination of decades of work by conservative legal scholars and anti-abortion activists, who directed money and voters to Republican politicians they hoped would nominate conservative judges. Former President Donald Trump nominated a wave of conservative federal judges, including three Supreme Court Justices—Gorsuch, Kavanaugh, and Barrett—building the most conservative Supreme Court in a generation and providing the crucial votes needed to overturn Roe.

For abortion-rights activists, the decision is a crushing loss that they argue violates a person’s fundamental right to bodily autonomy and endangers women’s health and economic independence.

The decision in Dobbs will exacerbate the vast differences in rights Americans are granted depending on where they live, as some states are poised to outlaw abortion entirely and others stand to become havens for the procedure. The decision runs counter to public opinion: a May 19 NPR/PBS NewsHour/Maris national poll found that 64% of Americans opposed overturning Roe v. Wade, while 33% supported it. Abortion rights will now likely play a major role in the midterm elections, as the decision lands in the midst of summer primaries and just months before November.

Read More: Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women

Activists on both sides are already gearing up for the next legal battles the Dobbs decision may ignite. Progressives worry the arguments made in the decision could be used to overturn other landmark cases rooted in similar legal grounding in the “right to privacy,” which the Supreme Court ruled in 1965’s Griswold v. Connecticut is established in the Bill of Rights. In Roe, eight years later, the Supreme Court ruled it was the right to privacy—this time specifically found in the Due Process Clause of the 14th Amendment—that protected “a woman’s qualified right to terminate her pregnancy” until fetal viability. Historic rulings in the LGBTQ civil rights movement—including 2003’s Lawrence v. Texas, which legalized same-sex sexual activity, and 2015’s Obergefell v. Hodges, which legalized same-sex marriage—are also built on the right to privacy. Several other landmark cases, like 1967’s Loving v. Virginia, which legalized interracial marriage, are similarly built upon rights found in the 14th Amendment without being explicitly listed.

In the majority opinion, Alito rejected the possibility of Dobbs impacting those decisions, writing that the court “stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” But in his concurrence, Thomas argued that the court should reconsider what rights are found in the Due Process clause of the 14th Amendment, explicitly naming Griswold, Lawrence, and Obergefell.

Anti-abortion advocates immediately cheered the court’s ruling overturning Roe. “Today we celebrate a historic victory for human rights as the Supreme Court overturns the dated Roe decision, ending half a century of abortion on demand that left more than 60 million dead children in its wake,” Susan B. Anthony Pro-Life America, one of the largest anti-abortion groups in the country, tweeted. The organization added that its work has just begun. “Today’s Supreme Court decision ushers in a new era in the fight for the unborn and their moms, with each state and Congress a battleground for life.”

For their part, abortion-rights activists decried the decision and promised to continue their work to help people access abortions in the new post-Roe reality. “The Supreme Court has now officially given politicians permission to control what we do with our bodies, deciding that we can no longer be trusted to determine the course for our own lives. But make no mistake—we are a movement that will demand we are treated like equal citizens,” tweeted Alexis McGill Johnson, president and CEO of Planned Parenthood. “We mean it when we say it—care, no matter what.”

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