June 24, 2022
The ruling came in the court’s opinion in Dobbs v. Jackson Women’s Health Organization, which centered on a Mississippi law that banned abortion after 15 weeks of pregnancy. The Republican-led state of Mississippi asked the Supreme Court to strike down a lower court ruling that stopped the 15-week abortion ban from taking place.
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” Justice Samuel Alito wrote in the court’s opinion.
Alito’s opinion began with an exploration and criticism of Roe v. Wade and its holding that while states have “a legitimate interest in protecting ‘potential life,” this interest was not strong enough to prohibit abortions before the time of fetal viability, understood to be at about 23 weeks into pregnancy.
“The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning,” Alito wrote.
Chief Justice John Roberts agreed that the viability line “never made any sense,” but said he would have taken “a more measured course” with this case. Rather than overturn Roe v. Wade altogether, Roberts said he would have continued to recognize a right to get an abortion, and that the right should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further.”
The court’s majority took a firmer stance against Roe v. Wade and the subsequent case Planned Parenthood v. Casey, holding “that Roe and Casey must be overruled.”
“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 Fourteenth Amendment,” Alito wrote.
The Court’s opinion recognized that the Fourteenth Amendment’s Due Process Clause has been found to guarantee certain rights that are not spelled out in the Constitution, but that those rights are “deeply rooted in this Nation’s history and tradition.” Abortion, the Court said, “does not fall within this category,” as “such a right was entirely unknown in American law” until the late 20th century.
The opinion continued to shred the Roe decision, saying it “was egregiously wrong from the start,” and that “[i]ts reasoning was exceptionally weak[.]”
Rather than continue the tradition established by Roe and Case, the Court wrote that it “is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion comes after a leak of a draft opinion from February striking down Roe caused nationwide debate and promoted pro-choice activist protests at the homes of the six conservative justices. In addition, dozens of pro-life pregnancy centers were vandalized since the opinion leak, Catholic churches were targeted for protests and unrest, and a suspect was charged with attempted murder for allegedly trying to assassinate Justice Brett Kavanaugh.
At least 13 Republican-led states have already passed “trigger laws,” in the event Roe was overturned, that would immediately restrict access to abortion.
Georgia, Iowa, Ohio and South Carolina all have laws banning abortions after the six-week mark, which have been ruled unconstitutional but would likely be revisited if Roe is overturned, the Guttmacher Institute, a pro-abortion research group, has reported.
On the other hand, pro-choice advocates will have to work to codify Roe or enact looser abortion restrictions by passing state-level legislation.
New York passed a bill in 2018 designed to codify Roe, and other blue states are expected to follow suit after the Supreme Court’s ruling.
Public opinion polling has also indicated that despite that more than six in 10 registered voters think the court should uphold Roe, the majority of Americans are in favor of some restrictions on abortion.
When Americans were asked in a recent Fox News poll about how they would feel if a law banning abortions after 15 weeks were passed in their state, just over half of voters favor it (54%) while 41% are opposed.
At the federal level, the Senate failed to advance a bill to codify federal abortion protections in Roe v. Wade in the week following the leaked draft.
Vice President Kamala Harris presided over the vote on the Women’s Health Protection Act. It needed 60 votes to advance but died in a 51 to 49 tally, with West Virginia Democratic Sen. Joe Manchin joining with all 50 Republicans in voting no.
Democratic campaign arms have already signaled that abortion will be a key issue heading into the midterms and will galvanize their base. Republicans are largely convinced that “sanctity of life” issues will spark renewed enthusiasm for conservative candidates in state-level elections.