In one of the most stunning reversals in the modern era of the Supreme Court, a majority of the Court overturned a nearly 50-year precedent in Roe v. Wade Friday and gave states the license to ban abortion, issuing a ruling in line with the draft opinion leaked in early May by Politico and paving the way for abortion to be largely outlawed in likely half of states.
Justice Samuel Alito delivered the opinion for the court, ruling Roe was “egregiously wrong” in a case concerning the legality of Mississippi’s 15-week abortion ban.
Alito argued Roe should be overturned because the right to an abortion is not expressly stated in the Constitution or “deeply rooted in this Nation’s history and tradition,” in line with the draft opinion he had previously written in February.
Four justices—Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—signed on to Alito’s opinion overturning Roe, while Chief Justice John Roberts issued a separate concurrence agreeing with the judgement and the three liberal justices dissented.
Roberts said he agreed with getting rid of the previous standard the court had established—that abortion should be legal until the fetus is viable—but believed the court went too far in overturning Roe entirely and “its dramatic and consequential ruling is unnecessary” in deciding the fate of the Mississippi law.
The ruling also overturned the court’s precedent in Planned Parenthood v. Casey, which was based on Roe and found in 1992 that states can’t enact abortion restrictions that pose an “undue burden” on the person getting the abortion.
64%. That’s the share of Americans who said they did not want Roe v. Wade to be overturned, according to a NPR/PBS News Hour/Marist poll conducted in May, which is in line with other polls on the issue. Polling consistently shows most Americans broadly support legal access to abortion, though many are in favor of restricting it further into a pregnancy.
“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.”
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizen,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in their dissent. “The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”
What To Watch For
States to start banning abortion immediately. Thirteen states have “trigger laws” that will take effect either with the Supreme Court’s decision, once a state official signs off or within a few weeks of the court’s ruling. Those laws—which will take effect in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming—will ban abortion entirely, and most make performing the procedure a felony punishable by prison time. (Oklahoma’s law is taking effect despite the state already banning abortion entirely.) An additional five states have abortion bans in place from before Roe was enacted, though Michigan’s law has been blocked from being enforced in court and Wisconsin Attorney General Josh Kaul has said he won’t enforce that state’s law. The pro-abortion rights Guttmacher Institute projects 26 states will ultimately enact abortion bans with Roe no longer in place.
What We Don’t Know
How far beyond just banning abortion the decision will go. Abortion rights advocates have warned overturning Roe could have knock-on effects that could impact such other areas of reproductive rights as birth control and in vitro fertilization, as well as adversely impact people who have miscarriages or ectopic pregnancies and may now face additional challenges for getting care. Legal experts have also warned the court getting rid of Roe could open the door to other rights the court has upheld that aren’t expressly stated in the Constitution being struck down, such as same-sex and interracial marriage.
The Mississippi case marked the Supreme Court’s biggest abortion case in decades, and came after Republican-led states passed a slew of abortion restrictions with an eye toward getting the issue back in front of the 6-3 conservative court. A number of states took increased action to restrict abortion even as the court was still deliberating in the case, with multiple states passing 15-week bans in line with Mississippi’s and Texas enacting a six-week ban that Idaho and Oklahoma have already copied. (Idaho’s ban has been blocked in court.) While the case was widely expected to result in the court rolling back abortion rights, Politico’s leaking of Alito’s draft opinion—a rare occurrence for the court, which typically keeps its deliberations under wraps—set off a renewed focus on abortion rights, spurring protests across the country and renewed efforts by Democratic lawmakers to preserve access to the procedure.
Here’s What Will Happen If The Supreme Court Overturns Roe V. Wade (Forbes)
How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Reportedly Set To Overturn Roe V. Wade (Forbes)