by Jennifer Shutt, Virginia Mercury
June 24, 2022
WASHINGTON — The U.S. Supreme Court on Friday overturned the 1973 Roe v. Wade ruling that established abortion as a constitutional right.
The decision by five of the Court’s nine justices will allow each state to set its own abortion laws, leading to a patchwork of access throughout the country. The result is expected to be an uptick in the number of women traveling out of state for abortions, as well as unsafe abortions in states where the medical procedure will now be banned or heavily restricted.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote in his opinion, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Chief Justice John Roberts filed a separate opinion concurring in the judgment about the Mississippi law at the center of the case, making that a 6-3 ruling, but not about overturning the constitutional right to an abortion, making that a 5-4 ruling.
“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 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.’”
Justice Stephen Breyer wrote the dissent in the case for himself, Elena Kagan and Sonia Sotomayor.
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” he wrote.
The new status of abortion access on a state-by-state basis, Breyer wrote , “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.”
Breyer later added, “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 citizens.”
Twenty-two states have laws that would restrict when and how a patient can terminate a pregnancy, according to the Guttmacher Institute, a reproductive health and rights organization.
Arizona, Michigan and Wisconsin are among the 10 states that have pre-Roe abortion bans that are now expected to take effect. Thirteen states — including Idaho, Louisiana, Missouri and Tennessee — have laws enacted since Roe that will be “triggered” by the court’s decision.
In Virginia, legislation in 2020 removed many of the state’s former restrictions on the procedure, eliminating mandatory ultrasounds and 24-hour waiting periods along with strict regulations on abortion clinics. Those rollbacks were largely achieved through a Democratic majority in both the House of Delegates and Senate and with support from then-Gov. Ralph Northam.
But with Republicans now in control of the House — and a pro-life governor — Democrats say they’ll be put on the defensive if abortion rights are ultimately overturned at the federal level.
A dozen states, including Maine, Maryland, Nevada and Washington, have laws that would protect abortion access up to the point of viability, usually 22 to 24 weeks into a pregnancy.
Colorado, the District of Columbia, New Jersey, Oregon and Vermont have laws that protect abortion access throughout a pregnancy, according to the Guttmacher Institute.
Thomas targets birth control, same-sex marriage
Justice Thomas wrote his own concurring opinion, arguing that since the court has overturned the constitutional right to an abortion, which was grounded in the 14th Amendment and the due process clause, other cases that have been rooted in the same right to privacy could all be reconsidered.
- The Griswold v. Connecticut case from 1965 that said states couldn’t bar married couples from making private decisions about birth control use.
- The Lawrence v. Texas case from 2003 that said states couldn’t criminalize consensual sexual relations between same-sex partners.
- The Obergefell v. Hodges case from 2015 that legalized same-sex marriage.
“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.
Thomas also wrote of the Dobbs case that “The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
Reaction pours in
The Center for Reproductive Rights, which brought the case to the Supreme Court, rebuked the Republican-nominated justices for ending the right to an abortion.
“The Court’s opinion delivers a wrecking ball to the constitutional right to abortion, destroying the protections of Roe v. Wade, and utterly disregarding the one in four women in America who make the decision to end a pregnancy,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
“Utter chaos lies ahead, as some states race to the bottom with criminal abortion bans, forcing people to travel across multiple state lines and, for those without means to travel, carry their pregnancies to term — dictating their health, lives, and futures. Today’s decision will ignite a public health emergency,” Northup continued.
Susan B. Anthony Pro-Life America, an anti-abortion group, celebrated the decision, while its president called for “an entirely new pro-life movement” to begin.
“Today’s outcome raises the stakes of the midterm elections. Voters will debate and decide this issue and they deserve to know where every candidate in America stands,” Marjorie Dannenfelser said in a statement. “Federal as well as state lawmakers must commit to being consensus builders who advocate for the most ambitious protections possible.”
The court heard two hours of arguments in December in Dobbs v. Jackson Women’s Health Organization, which arose after Mississippi enacted a law that banned the vast majority of abortions after 15 weeks of pregnancy.
U.S. Solicitor General Elizabeth B. Prelogar, who argued on behalf of the federal government as a “friend of the Court,” said that the “real-world effects of overruling Roe” and the 1992 Planned Parenthood v. Casey decision that affirmed the right to an abortion “would be severe and swift.”
“Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest,” Prelogar said. “Women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth, with profound effects on their bodies, their health and the course of their lives.”
Mississippi Solicitor General Scott G. Stewart argued the nine justices should not only uphold Mississippi’s 2018 law, which had yet to go into effect, but overturn the two cases that have kept abortion access legal for nearly 50 years.
“Roe versus Wade and Planned Parenthood versus Casey haunt our country,” he said. “They’ve poisoned the law.”
Abortion rights history
The Supreme Court first ruled that a pregnant woman has a constitutional right to abortion in the 1973 Roe v. Wade case that stemmed from a Texas woman being unable to access an abortion in her home state. The decision was 7-2.
Justice Harry Blackmun wrote that the right to an abortion stemmed from the right to privacy under the 14th Amendment. But the court ruled that a woman’s fundamental right to terminate their pregnancy must be weighed against the government’s interest in protecting health and potential life.
The court established a trimester framework that determined when and how governments could impose regulations on abortion access.
In the 1992 Planned Parenthood v. Casey case, a 5-4 ruling, the court upheld a constitutional right to an abortion. But the decision overturned the trimester framework, instead setting viability, about 22 to 24 weeks into a pregnancy, as the line for government regulation.
The court said a woman had a right to an abortion before viability without undue interference from the government. After reaching a point of viability, states can regulate abortion as long as it doesn’t affect health or life.
In the plurality opinion, Justice Sandra Day O’Connor wrote that “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
In a dissenting opinion, Justice Thomas wrote for himself, Antonin Scalia and two others that they would have overturned Roe v. Wade, saying the issue in the case was “not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both.”
“The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not,” he wrote.
Will court survive a ‘stench’?
During oral arguments in December in the Mississippi case the justices ruled on Friday, Justice Sotomayor expressed concern over how the court overturning cases that established abortion access as a constitutional right would impact its reputation.
“Now, the sponsors of this bill, the House bill in Mississippi, said we’re doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new justices on the Supreme Court,” Sotomayor said.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Justice Kagan questioned whether the court overruling Roe and Casey would lead Americans to view the court as “a political institution that will go back and forth, depending on what part of the public yells the loudest or changes to the court’s membership.”
And Justice Breyer read from a decision the entire Supreme Court issued in Casey about when and how justices should overturn watershed cases to avoid a situation that “would subvert the Court’s legitimacy.”
“They say overruling unnecessarily and under pressure would lead to condemnation, the Court’s loss of confidence in the judiciary, the ability of the Court to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law,” Breyer read.
The Mississippi law at the center of the argument allowed abortions after 15 weeks in cases of “severe fetal abnormality” or medical emergency, but it did not include exceptions for rape or incest.
At the time Mississippi Gov. Phil Bryant signed the bill in March 2018, the 15-week threshold was the earliest abortion ban in the nation.
That has since changed, with several states enacting laws restricting abortion below that benchmark, including an Oklahoma law that makes abortion a felony punishable by up to 10 years in state prison, a maximum fine of $10,000, or both.
Abortion rights organizations have filed lawsuits to stop many of those new laws from going into effect on the basis that they violated the constitutional right to an abortion that the court undid this week.
The Supreme Court majority opinion released Friday is similar to a draft version, led by Justice Alito, that was leaked to Politico in early May.
The leak was broadly criticized by Republicans, who at the time didn’t want to talk about the implications of the court overturning Roe, while Democrats rebuked the conservative justices for the expected decision.
Senate Majority Leader Chuck Schumer, a New York Democrat, held a floor vote in May on a bill that would have codified a nationwide right to an abortion.
That legislation couldn’t get past the chamber’s 60-vote legislative filibuster.
Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski, both Republicans who expressed frustration with how the Trump-nominated justices portrayed their view of Roe as a settled precedent during their confirmation processes, voted against the bill.
West Virginia Democratic Sen. Joe Manchin did as well.
Manchin said in a statement Friday that he was “deeply disappointed that the Supreme Court has voted to overturn Roe v. Wade.”
“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans,” Manchin continued.
U.S. abortion law timeline
Abortion is illegal in all states, with some exceptions to save the life of the patient.
The American Law Institute proposes a model penal code for state abortion laws. The code advocates legalizing abortion for reasons including the mental or physical health of the mother, pregnancy due to rape and incest, and fetal deformity.
April 25: Colorado Gov. John A. Love signs the first American Law Institute-model abortion law in the United States, allowing abortion in cases of permanent mental or physical disability of either the child or mother or in cases of rape or incest. Similar laws are passed in California, Oregon, and North Carolina.
April 11: New York legalizes abortion up to the 24th week of pregnancy, repealing the state’s 1830 law that banned abortion “after quickening” except to save a woman’s life. Similar laws are passed in Alaska, Hawaii and Washington state.
April 21: The U.S. Supreme Court rules on its first case involving abortion in United States v. Vuitch, upholding a District of Columbia law permitting abortion only to preserve a patient’s life or health, meaning “psychological and physical well-being.”
By year’s end 13 states have an American Law Institute-type law. Four states allow abortion on demand. Mississippi allows abortion for rape and incest  while Alabama allows abortion for the mother’s physical health . In 31 states abortion is allowed only to save the patient’s life.
Jan. 22: The U.S. Supreme Court issues its ruling in Roe v. Wade, finding that a “right of privacy” it had earlier discovered was “broad enough to encompass” a right to abortion and adopting a trimester scheme of pregnancy. In the first trimester, a state could enact virtually no regulation. In the second trimester, the state could enact some regulation, but only for the purpose of protecting maternal health. In the third trimester, after viability, a state could ostensibly “proscribe” abortion, provided it made exceptions to preserve the life and health of the woman seeking abortion. Issued on the same day, Doe v. Bolton defines “health” to mean “all factors” that affect the woman, including “physical, emotional, psychological, familial, and the woman’s age.”
June 20: In Maher v. Roe, Beal v. Doe and Poelker v. Doe, the U.S. Supreme Court holds that federal and state governments are under no obligation to fund abortion in public assistance programs, even if childbirth expenses are paid for indigent women and even if the abortion is deemed to be “medically necessary.”
June 30: In Harris v. McRae, the U.S. Supreme Court upholds the Hyde Amendment, sponsored by Rep. Henry Hyde, R-Ill., ruling there is no constitutional right for women to receive abortions at public expense, as through Medicaid.
March 23: In H.L. v. Matheson, the U.S. Supreme Court approves a Utah parental notification law that requires a doctor to notify the parents of a minor girl who is still living at home as her parents’ dependent when an abortion is scheduled.
March 10: The Senate Judiciary Committee approves the Hatch Amendment, which would give the states and Congress joint authority to regulate abortion.
June 15: In Akron v. Akron Center for Reproductive Health, the U.S. Supreme Court strikes down state requirements that abortions performed after the first trimester be done in a hospital, women’s right to know laws and waiting periods after information is provided to the woman seeking abortion before she can consent to an abortion. However, the Court rules that states may insist that only licensed physicians perform abortions.
June 11: In Thornburgh v. American College of Obstetricians and Gynecologists, the U.S. Supreme Court strikes down state laws mandating that a doctor use the method most likely to allow the child to be born alive in post-viability abortions.
July 2: The U.S. District Court in New York upholds the constitutionality of Reagan administration regulations barring the Department of Defense from funding abortions.
July 3: In Webster v. Reproductive Health Services, the U.S. Supreme Court, upholding portions of a Missouri law, finds the U.S. Constitution does not require government to make public facilities such as hospitals available for use in performing abortions.
June 25: In Ohio v. Akron Center for Reproductive Health, the U.S. Supreme Court upholds a one-parent notification requirement with a judicial bypass procedure. The Court also rules, in Hodgson v. Minnesota, that a two-parent notification law with a judicial bypass is constitutional.
May 23: In Rust v. Sullivan, the U.S. Supreme Court upholds the George H.W. Bush administration’s regulations prohibiting routine counseling and referral for abortion in 4,000 clinics that receive federal Title 10 family planning funds.
June 29: In Planned Parenthood v. Casey, the U.S. Supreme Court reaffirms the core holdings of Roe but modifies it by discarding the trimester scheme, upholding certain abortion restrictions and adopting the “undue burden” test of abortion laws, requiring opponents of an abortion regulation to prove the provision would create an “undue burden” on a woman’s right to abortion in order for it to be declared unconstitutional.
June 30: In Madsen v. Women’s Center Inc., the U.S. Supreme Court says judges may create buffer zones to keep anti-abortion demonstrators away from abortion clinics.
Aug. 10: Norma McCorvey, the “Jane Roe” of Roe v. Wade, tells a nationwide audience on “Nightline” that she rejects abortion and the abortion-rights movement and now supports the right to life of unborn children. She earlier revealed that this pregnancy was not the product of a rape, as she had previously contended. In an interview shortly before her death for the 2020 documentary “AKA Jane Roe,” McCorvey claimed that she had been paid by anti-abortion groups to support their cause, according to USA Today.
June 16: The U.S. Supreme Court upholds a Montana law that requires that abortions be performed only by physicians, not their assistants.
April 18: U.S. Supreme Court, in Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, upholds the Partial-Birth Abortion Act of 2003.
June 27: In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court rules two Texas abortion restrictions are unconstitutional because they would shut down most abortion providers and create an “undue burden” on women seeking an abortion.
June 29: The U.S. Supreme Court, in June Medical Services v. Russo, strikes down a law nearly identical to Whole Woman’s Health that would have made abortion virtually inaccessible in Louisiana.
Sept. 2: Texas implements a law banning abortion at approximately six weeks of pregnancy, before many people know they are pregnant.
— Cate Folsom, Nebraska Examiner
Sources: Based on information compiled by National Right to Life and Planned Parenthood
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