By Terrance Turner
May 2, 2022 (updated June 24, 2022)
The Supreme Court has overturned the landmark 1973 case of Roe v. Wade.
In a 6-3 ruling, the Court upheld a 2018 abortion ban passed by Republicans in the Mississippi Legislature and ruled that the United States Constitution does not confer the right to an abortion. In doing so, it strikes down the 1973 verdict as well as a 1992 decision that upheld abortion rights, known as Planned Parenthood vs. Casey.
As expected, Justice Samuel Alito wrote the majority opinion, joined by Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Comey Barrett. Chief Justice John Roberts filed an opinion disagreeing on the question of overturning Roe altogether but concurring on the case concerning the Mississippi suit.
The case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerned a law enacted in 2018 by the Republican-dominated Mississippi Legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute, a calculated challenge to Roe, included narrow exceptions for medical emergencies or “a severe fetal abnormality.” Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding. Now both have been overturned by the Court.
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Alito wrote. “The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however,
requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider.
First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments […] The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications.”
“We hold that Roe and Casey must be overruled,” Alito wrote. “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,” he said.“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,” he added.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.
In their scathing joint dissent, the court’s liberal justices wrote, “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
“The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom,” said the dissent by Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life,” it said. “A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”
The language in the decision echoes that of an initial draft of a majority opinion written by Justice Samuel Alito that in May was circulated inside the court and obtained by POLITICO.
POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in a Mississippi abortion case, along with other details supporting the authenticity of the document. (The Mississippi case concerns a state law mandating that no one may perform an abortion after 15 weeks of pregnancy, unless there is a medical emergency or a fetal abnormality.) The draft opinion runs 98 pages, including a 31-page appendix, and the document, labeled as a first draft of the majority opinion, includes a notation that it was circulated among the justices on Feb. 10.
Alito’s majority opinion begins with a lengthy look at views on the issue: “Abortion presents a profound moral issue on which American hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women form achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances,” Alito writes.
He goes on to outline how when Roe was decided, 30 states still outlawed abortion at all stages — a state of affairs halted entirely by Roe, which ensured a woman’s right to terminate a pregnancy in the first trimester. In Planned Parenthood of Southeastern Pa. v. Casey (1992), he writes, the Court split three ways: two justices wanted no change, four wanted it overturned, and three held that Roe’s central premise must be adhered to. Alito dismantles those decision in his opinion:
“We hold 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 of which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth 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.”
Alito goes even further in further passages.
“Roe was egregiously wrong from the start. 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. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
He quoted the late Justice Antonin Scalia’s opinion from Casey: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade each other and then voting.” Alito added: “That is what the Constitution and the rule of law demand.”
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
UPDATE (11:12 PM): Protesters have gathered outside the Supreme Court in protest of the potential ruling. According to Axios, “Pro-abortion rights demonstrators rallied outside the U.S. Supreme Court on Monday night after a leaked draft document first published by Politico indicated the justices were preparing to overturn Roe v. Wade.”
About 200 protesters were gathered in front of barricades at the court in Washington, D.C., chanting “abortion is health care,” Axios’ Julia Shapero reports from the scene. Court police have reportedly erected barricades, according to NBC News affiliates.
Axios cannot verify the document, reportedly authored by Justice Samuel Alito in February. (Politico reported that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.) If it is real — if a ban on abortion passes — it will become illegal in 13 states, including Texas. Oklahoma, Louisiana, and Mississippi are also among the states.
UPDATE (May 3, 2022): The Supreme Court and Politico have confirmed the authenticity of the draft opinion that sent shockwaves through the country last night. According to the New York Times, the top brass at Politico sent an email asserting their confidence that the document is authentic. “After an extensive review process, we are confident of the authenticity of the draft,” Politico’s editor in chief, Matthew Kaminski, and its executive editor, Dafna Linzer, wrote. “This unprecedented view into the justices’ deliberations is plainly news of great public interest.”
The editors did not explain what that review process entailed, or how the lead reporters on the story, Josh Gerstein and Alexander Ward, had obtained the draft. Last night’s article said that the person who provided the doument had provided additional details to authenticate it, but it did not elaborate on what they were. Mr. Kaminski declined to comment further. “We’re going to let the story and our staff note speak for themselves,” he said.
Meanwhile, the Court has also confirmed the draft’s authenticity. The Supreme Court said in a release, “Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in this case.”
Chief Justice John Roberts: “We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” The chief justice said he had “directed the Marshal of the Court to launch an investigation into the source of the leak,” per Yahoo! News. (Sen. Minority Leader Mitch McConnell has called for a criminal investigation.)
While some Republicans are expressing outrage over the leak, Democrats are expressing concern over the implications of the law itself. Senator Bob Casey (D-Penn.), who has opposed abortion rights in the past, said in a statement that, if the draft becomes final, he had “serious concerns about what overturning almost 50 years of legal precedent will mean for women in states passing near or total bans on abortion.” House Speaker Nancy Pelosi blasted the ruling for ““brazenly ignoring 50 years of its own precedent, the United States Constitution and the will of the American people” in a statement.
“Opponents of Roe want to punish women,” said Vice President Kamala Harris. “The rights of all Americans are at risk,” she added. “If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life. This is the time to fight for women and for our country with everything we have.”
President Joe Biden weighed in on the matter before leaving for a flight to Alabama today. “It concerns me a great deal that we’re gonna have to — after 50 years — decide that a woman doesn’t have the right to choose,” Biden told reporters. “But even more, equally as profound, is the rational used. It would mean that every other decision regarding the notion to privacy is thrown into question.”
“One of the debates that I had with Robert Bork was whether Griswold vs. Connecticut should stand as law. The state of Connecticut said that, in the privacy of your bedroom, a husband and wife, or a couple, could not choose to use contraception,” Biden said. “The use of contraception was a violation of the law. If the rationale of the decision as released were to be sustained, a whole range of rights are in question.” He added that “if it becomes the law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights: the right to marriage, the right to determine a whole range of things.”
Indeed, Clarence Thomas in his opinion today indicated that the Court should be examining Griswold next, along with the Obergefell marriage rights case.
I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause.
Such a right is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.
“As I have previously explained, ‘substantive due process’ is an oxymoron that “lack[s] any basis in the Constitution,” Thomas writes. He adds, “Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue.”
“I agree that ‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’ For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. This signals that, with the right of due process negated, the Court may soon overturn more longstanding laws to make contraception, gay sex, and gay marriage illegal.
Significantly, Thomas (whose wife is white) neglected to mention Loving vs. Virginia (1967) — the landmark case that legalized interracial marriage nationwide. That case also relies on due process.