Ever since a draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health was leaked to Politico in early May, it has been widely expected that the majority-conservative court would overturn the landmark Roe v. Wade decision, which established a constitutional right to abortion.
The opinion came on Friday. It was written by Samuel Alito, a committed conservative who had been appointed by George W. Bush. He was joined by five other conservatives, three of whom had been appointed by President Trump.
Below are key passages from Alito’s opinion.
1. The right to abortion is not inherent in American law
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the due process clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.
Here, the justices make what is their core case: Abortion is not an essential American right protected by the 14th Amendment, whose due process clause says that states cannot arbitrarily take rights away from citizens. Some rights are unenumerated, meaning they are not in the Constitution but nevertheless based in its principles.
Abortion no longer has that protection because, in the view of the Supreme Court’s conservatives, it failed the standard established in a famous 1997 decision on assisted suicide known as Glucksberg, which held that unenumerated rights have to have a historical basis.
Many states had already all but banned abortion, in part because of another key abortion case: Planned Parenthood of Southeastern Pennsylvania v. Casey, which the Supreme Court heard in 1992. In its ruling, the court narrowly upheld Roe but asserted its “reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society.”
Abortion remained legal, but Casey allowed for new restrictions, as long as those restrictions did not prove an “undue burden.”
Friday’s ruling overturned Casey along with Roe. States are now entirely free to decide whether to make abortion legal or not — without having to worry about the 14th Amendment.
2. Other rights are not threatened
The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.
Democrats and judicial progressives have worried that Dobbs was only the beginning of a conservative-led effort to roll back other unenumerated rights relating to privacy and autonomy. In this passage, Alito assures that will not be the case because, as he puts it, terminating a “potential life” simply requires a higher bar than do other rights.
So even if those other rights are similar to the right to an abortion, Alito says, they should not been seen as coming under similar threats.
The four cases referenced in the opinion are at the bedrock of liberal jurisprudence. Decided in 1965, the Griswold ruling came down in favor of married couples seeking contraception; it is also a key feature of how the American legal system has come to understand the notion of privacy, which is not described in the Constitution. Eisenstadt extended the right to contraception to unmarried people. Lawrence v. Texas prevented states from imposing so-called sodomy laws against same-sex couples, while Obergefell made gay marriage legal.
Despite the assurances Alito makes about those decisions, many Democrats are fearful of what is next, given how conservative the Supreme Court will likely remain for years to come.
They were especially troubled by a concurring opinion issued by the staunchly conservative Clarence Thomas in which he argues that the court should reconsider the very same cases Alito assured were not threatened by the Dobbs ruling.
“We have a duty to ‘correct the error’ established in those precedents,” Thomas wrote, seeming to suggest that other unenumerated rights are indeed in peril.
3. Precedent isn’t perfect
…When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.
Voicing respect for precedent has become something of a ritual for Supreme Court nominees, an assurance that there is no need to worry about the kind of judicial activism both sides decry.
“Judges are like umpires,” Chief Justice John Roberts said during his 2005 confirmation hearing. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”
But in overturning Roe v. Wade, the conservatives made the argument that sometimes precedent (stare decisis, a Latin term for letting a ruling stand) is an imperfect guide to the present.