US: Supreme Court Overturns Roe v. Wade
The decision, eliminating the constitutional right to an abortion after almost 50 years, will lead to all but total bans on the procedure in about half of the states.
After a leak, the Supreme Court details its final decision on abortion.
WASHINGTON — The Supreme Court on Friday overruled Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years in a decision that will transform American life, reshape the nation’s politics and lead to all but total bans on the procedure in about half of the states.
The ruling will test the legitimacy of the court and vindicate a decades-long Republican project of installing conservative justices prepared to reject the precedent, which had been repeatedly reaffirmed by earlier courts. It will also be one of the signal legacies of President Donald J. Trump, who vowed to name justices who would overrule Roe. All three of his appointees were in the majority in the 6-to-3 ruling.
The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.
Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.
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.
Lower courts ruled for the clinic, saying the law was plainly unconstitutional under Roe, which prohibited states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, currently about 23 weeks.
Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.
“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Judge Reeves wrote. “This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”
“With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the Capitol when it passed this legislation,” he wrote. “Time will tell. If overturning Roe is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge Reeves’s ruling. “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham wrote for the majority.
In ruling for the state, the Supreme Court did more than merely sustain the Mississippi law, leaving questions about stricter limits for another day. Instead, it overruled Roe outright.
When the court decided Roe in 1973, it established a framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother.
The court discarded the trimester framework in 1992 in the Casey decision but retained what it called Roe’s “essential holding” — that women have a constitutional right to terminate their pregnancies until fetal viability.
Two years ago, in June 2020, the Supreme Court struck down a restrictive Louisiana abortion law by a 5-to-4 margin, with Chief Justice John G. Roberts Jr. providing the decisive vote. His concurring opinion, which expressed respect for precedent but proposed a relatively relaxed standard for evaluating restrictions, signaled an incremental approach to cutting back on abortion rights.
But that was before Justice Ruth Bader Ginsburg died that September. Her replacement by Justice Amy Coney Barrett, a conservative who has spoken out against “abortion on demand,” changed the dynamic at the court, diminishing the chief justice’s power to guide the pace of change.
Emily Cochrane
What did Roe v. Wade say?
By a 7-to-2 vote, the Supreme Court in Roe v. Wade in 1973 established a constitutional right to abortion, striking down laws in many states that had banned the procedure. The court said states could not ban abortions before fetal viability, the point at which the fetus can survive outside the womb. That was around 28 weeks at the time; because of improvements in medical technology, it is around 23 weeks now.
The decision was widely criticized, including by people who supported access to abortion as a policy matter.
Justice Ruth Bader Ginsburg, a strong supporter of abortion rights who died in 2020, expressed qualms about Roe over the years.
“The court bit off more than it could chew,” she said in 2009, for instance, in remarks after a speech at Princeton University. It would have been enough, she said, to strike down the extremely restrictive Texas law at issue in Roe and leave further questions for later cases.
“The legislatures all over the United States were moving on this question,” she added. “The law was in a state of flux.”
Roe shut those developments down, she said, creating a backlash.
“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” Justice Ginsburg said. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”
The decision also came under withering criticism from some liberal law professors.
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” John Hart Ely, a prominent constitutional scholar, wrote in 1973 in The Yale Law Journal.”
Professor Ely, who died in 2003, wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence.
“It is not constitutional law,” he said of the decision, “and gives almost no sense of an obligation to try to be.”
Roe established a framework for governing abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother.
The court discarded the trimester framework in 1992 in Planned Parenthood v. Casey. But Casey retained what it called Roe’s “essential holding” — that women have a constitutional right to terminate their pregnancies until fetal viability.
Source: New York Times
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