PITTSBURGH — The U.S. Supreme Court’s decision Friday to overturn Roe v. Wade could do lasting damage to the institution’s legacy as it signals a changing approach to precedent, according to legal experts.
In ruling that there is no constitutional basis for legal abortions, the court went back on nearly 50 years of precedent and made a decision that hits “at the core of people’s personal lives,” said Dara E. Purvis, a law professor at Penn State University.
The 6-3 decision in Dobbs v. Jackson Women's Health Organization concluded that the right to abortion cannot be found in the Constitution, thus overturning Roe v. Wade — the 1973 case legalizing abortion nationally — and Planned Parenthood v. Casey, a 1992 ruling that created the standards by which the abortion right was legally analyzed.
“I think this term has done lasting and, possibly, irreversible damage to the legitimacy of the court in the eyes of the public,” Purvis said in an interview Friday.
The court’s willingness to “destabilize” established law like Roe v. Wade goes against many philosophies about precedent, Purvis said, with generations of women having grown up in a world in which access to abortion was assumed due to the protections provided by the landmark decision.
Under that assumption, people “don’t have to open a newspaper every morning to see what rights you have today,” she said. Rulings such as the one last week show that those precedents, once stable, are no longer safe.
Justice Samuel Alito’s majority opinion does make efforts to say the issue of abortion is different and separate from other privacy-related cases the court has examined.
“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But Purvis said much of his opinion is written “incredibly broadly” and gives no indication that the court will stop at overturning Roe.
That means the conservative-leaning court could begin to re-examine other cases in which the right to privacy was used as a basis for decisions, from same-sex marriage to contraceptives.
“I think we are immediately going to begin seeing red states start restricting access to birth control methods,” Purvis predicted, starting with those that could be argued as some form of “abortion” depending on when they are used relative to conception.
Justice Clarence Thomas’ concurring opinion makes specific reference to rights surrounding access to birth control, as well as same-sex marriage and sexual activity. He argued that they are just as viable for re-examination due to their dependence on the due process clause of the Constitution’s 14th Amendment.
His opinion singles out perceived weaknesses in 1965’s Griswold v. Connecticut, which gave couples legal access to contraceptives, and 2015’s Obergefell v. Hodges, which allowed same-sex couples to wed, and could indicate the path that the court takes in coming years.
While Thomas wrote that he agrees that Friday’s opinion should not cast doubt on other precedents, he added that in “future cases, we should reconsider all of this Court’s substantive due process precedents,” including those regarding contraceptives, same-sex marriage and private sexual activity. He goes on to call them “demonstrably erroneous decisions.”
Whereas Alito attempts to say abortion should be discussed separately from issues such as same-sex marriage, Thomas “says the silent part out loud,” said Greer Donley, assistant professor of law at the University of Pittsburgh.
Thomas’ concurring opinion acts as an indication of where the court’s most conservative members may be headed.
Chief Justice John Roberts, in his opinion, voted with the majority that some of the tests set forth by the precedential Casey were unworkable, but he didn’t go so far as to agree with overturning Roe entirely. In a partially dissenting opinion, he suggested narrowing the opinion to address the issues at hand in the Dobbs case without fully rolling back the legal abortion precedent
This incremental approach to rolling back Roe, experts said, was an example of Roberts' reputation as someone who is concerned with protecting the court’s legitimacy, especially at a time when trust in political institutions is at a low point.
“He’s an institutionalist by nature,” Donley said. “He’s very concerned about the court’s reputation, and he knows that this is going to cause the court’s reputation to take a hit.”
The one-two punch of the court’s action Thursday to strike down a century-old decision regarding carrying concealed weapons in New York and Friday’s rollback of national abortion rights “shows that Chief Justice Roberts is not in the driver’s seat,” Purvis said, and that the justices “are out of step with the vast majority of Americans.”
A Gallup poll released in May, for example, showed 85% of Americans support legal abortion in at least some cases.
One of the most impactful events that preceded the abortion decision, experts agreed, was the death of Justice Ruth Bader Ginsburg, a proponent of abortion rights and a liberal voice on the court until her death in 2020.
Ginsburg’s passing allowed then-President Donald Trump to nominate Justice Amy Coney Barrett to the court, tilting it decisively into a conservative majority.
“(Ginsburg’s death) was everything in this decision,” Donley said. “For those of us who have been studying this area for a long time, at least for me, I knew the night that Justice Ginsburg died that the right to abortion would be completely eliminated.”
Purvis described the current court as an “extraordinarily conservative” majority with “pretty much no brakes,” meaning it will be relatively easy to tell which way the court will rule on other hot-button issues with a clear political divide in the future.
In trying to contextualize how these justices fit into the court’s history, some people might point to the court’s Lochner era when it made several decisions deregulating industry in a streak of conservative, activist opinions in the late 19th and early 20th centuries, Purvis said.
But she hesitated to say it was appropriate to liken that period — one of the most controversial eras of the Supreme Court — to what the justices have done recently.
“I’m not sure that (comparison) even captures just how far this court is willing to go because even the Lochner court wasn’t overturning precedent the way this court does,” she said.
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