WASHINGTON – The U.S. Supreme Court overturned Roe v. Wade, a landmark 1973 court ruling that established abortion as a constitutional right, revoking the right from women and shifting authority over the procedure to states.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” the majority opinion announced Friday said. “Roe was egregiously wrong from the start.”
States across the country will now have the legal authority to ban abortion outright for the first time in 50 years. Thirteen states are already positioned to do so with “trigger laws” in place that will activate with the end of Roe. They are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Wyoming. Additional states are preparing to do the same or to pass restrictions that will strictly limit access to abortion.
The decision in Dobbs v. Jackson Women’s Health Organization marks the culmination of a decades-long legal and political battle waged by abortion opponents to whittle away at Roe and ultimately defeat it. Advocates of Roe say the new decision goes against the will of the American public, a majority of which opposes a full repeal of the ruling, and leaves them with little recourse to protect reproductive rights for millions of women in many politically conservative states across the country.
Central to the case was a Mississippi state law that proposed a ban on most abortions after fifteen weeks. The court voted 6-3 to uphold the Mississippi law, but 5-4 on whether to overturn Roe completely, with Chief Justice John Roberts writing a separate opinion advocating for a “more measured course.”
Justice Samuel Alito, appointed to the court by President George W. Bush, wrote the majority opinion, joined by Justice Clarence Thomas, appointed by President George H. W. Bush, as well as Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all appointed by President Donald Trump.
In a concurring opinion, Kavanaugh wrote the decision reverts the Supreme Court to a “neutral” stance on abortion rights and allows citizens to determine how to regulate abortion through the “democratic process,” at the state and local level. But three justices writing in dissent note that the Dobbs decision does not preclude the federal government from banning abortion nationwide.
Some states that remain supportive of abortion, including California and New York, are working on safe-haven laws that will expand the right and protect women traveling from out of state in search of the procedure. Others, such as Texas, are drafting extraterritorial laws that would punish women traveling out of state to seek abortion.
The Dobbs decision could also upend a legal framework establishing a right to privacy that undergirds decades of jurisprudence, including court rulings that enshrined rights to contraception, sexual intimacy and marriage. And it is certain to play a major role in not just this year’s midterm elections, but in state and federal races for years to come, where candidates will have to debate and campaign on a new set of rules governing the procedure.
In his opinion, speaking for the majority of the court, Alito emphasized that “this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But in a concurring opinion, Thomas wrote that in light of the court’s reasoning in overturning Roe, it should also “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
The three cases cited by Thomas relate to Supreme Court decisions that guaranteed a right to contraception, outlawed criminalization of sodomy and established the right to same-sex marriage, respectively.
Thomas wrote the court has a duty to “’correct the error’ established in those precedents.”
In a special concurring opinion, Roberts said that the court had “expressly disclaimed” the Dobbs ruling would start a new era of constitutional interpretation that would discard several precedents.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote. “Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed.”
Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — all appointed by Democratic presidents — dissented, warning that a “balance” struck by Roe between two moral codes in the abortion debate has been discarded.
“Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs,” the dissent reads.
“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” it continues. “Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”
The justices also warned, despite assurances built in to Alito’s opinion that Dobbs’ rationale was limited to abortion rights, that “no one should be confident that this majority is done with its work.”
“The right Roe and Casey recognized does not stand alone,” the three justices wrote, referring to Planned Parenthood v. Casey, the 1992 precedent that upheld Roe. “To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”
In a statement, Democratic House Speaker Nancy Pelosi called the decision “cruel,” “outrageous,” and “heart-wrenching” before blaming GOP politicians for adding conservative justices to the Supreme Court.
“Because of Donald Trump, Mitch McConnell, the Republican Party and their super majority on the Supreme Court, American women today have less freedom than their mothers,” said Pelosi, the first woman to ever serve as speaker of the House.
The California congresswoman added that Democrats would continue trying to make it lawful everywhere in the country to have an abortion.
A leaked draft of Alito’s opinion, published by Politico in May, previewed the end of Roe and Casey. The leak prompted a national uproar and deep distrust at the court in the final weeks of its term. A recent assassination attempt against Kavanaugh by an opponent of the draft decision prompted federal law enforcement to provide each justice with round-the-clock security.
The final decision was revealed through a posting online — an unusual turn for a court that traditionally sees its draft opinions and dissents read aloud from the court bench. The court cited coronavirus pandemic protocols for the change.
____
