Published Fri, Jun 24 2022 10:11 AM EDTUpdated Fri, Jun 24 2022 3:03 PM EDT
- The Supreme Court in a 5-4 decision overturned Roe v. Wade, the landmark ruling that established the constitutional right to abortion.
- Roe since 1973 had permitted abortions during the first two trimesters of pregnancy in the United States.
- Almost half the states are expected to outlaw or severely restrict abortion as a result of the Supreme Court's decision on a Mississippi case known as Dobbs v. Jackson Women's Health Organization.
- Justice Samuel Alito wrote the majority opinion, joined by four other conservatives. The three liberal justices opposed the decision. Chief Justice John Roberts voted with the majority to uphold the Mississippi abortion restrictions but did not approve of tossing out Roe altogether.
The Supreme Court in a 5-4 decision on Friday overturned Roe v. Wade, the landmark ruling that established the constitutional right to abortion in the U.S. in 1973.
The court's controversial but expected ruling gives individual states the power to set their own abortion laws without concern of running afoul of Roe, which had permitted abortions during the first two trimesters of pregnancy.
Follow live coverage of reaction to abortion decision here
Almost half the states are expected to outlaw or severely restrict abortion as a result of the Supreme Court's decision, which is related to a highly restrictive new Mississippi abortion law. The laws will affect tens of millions of people around the country, who may have to cross state lines to seek reproductive health care.
Other states plan to maintain more liberal rules governing the termination of pregnancies.
Supporters of abortion rights immediately condemned the ruling, while abortion opponents praised a decision they had long hoped for and worked to ensure. Protesters descended on the Supreme Court on Friday to speak out both for and against a decision that will upend decades of precedent in the U.S.
Read the Supreme Court decision overturning Roe v. Wade here
Abortion opponents celebrate outside the U.S. Supreme Court in Washington, D.C., on June 24, 2022.
Olivier Douliery | AFP | Getty Images
Justice Samuel Alito, as expected, wrote the majority opinion that tossed out Roe as well as a 1992 Supreme Court decision upholding abortion rights in a case known as Planned Parenthood v. Casey.
Alito was joined in that judgment by four other conservatives on the high court. Chief Justice John Roberts voted with the majority to uphold the Mississippi abortion restrictions but did not approve of overturning Roe altogether.
The majority also included three justices appointed by former President Donald Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The court's three liberal justices filed a dissenting opinion to the ruling, which quickly drew protestors to the Supreme Court building on Capitol Hill in Washington, D.C.
"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," Alito wrote.
"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."
In a concurring opinion with the majority ruling, the conservative Justice Clarence Thomas wrote that in light of the rationale for overturning Roe, the Supreme Court should reconsider its rulings in three other past cases which established a right to use birth control, and which said there is a constitutional right for gay people to have sex and marry one another.
Friday's bombshell decision came a day after the Supreme Court in another controversial ruling invalidated a century-old New York law that had made it very difficult for people to obtain a license to carry a gun outside of their homes.
Anti-abortion protestors march in front of the U.S. Supreme Court building as the court considers overturning Roe v. Wade on June 13, 2022, in Washington, DC.
Roberto Schmidt | AFP | Getty Images
The case that triggered Roe's demise, known as Dobbs v. Jackson Women's Health Organization, is related to a Mississippi law that banned nearly all abortions after 15 weeks of pregnancy.
Dobbs was by far the most significant and controversial dispute of the court's term.
It also posed the most serious threat to abortion rights since Planned Parenthood v. Casey, in which the Supreme Court reaffirmed Roe.
Dobbs deepened partisan divisions in a period of already intense political tribalism.
The early May leak of a draft of the majority opinion, which completely overturned Roe, sent shockwaves across the country and galvanized activists on both sides of the debate. It also cast a pall over the nation's highest court, which immediately opened an investigation to find the source of the leak.
The publication of the court's draft opinion, written by Alito, sparked protests from abortion-rights supporters, who were outraged and fearful about how the decision will impact both patients and providers as 22 states gear up to restrict abortions or ban them outright.
The leaked opinion marked a major victory for conservatives and anti-abortion advocates who had worked for decades to undermine Roe and Casey, which the majority of Americans support keeping in place.
But Republican lawmakers in Washington, who are hoping to win big in the November midterm elections, initially focused more on the leak itself than on what it revealed. They also decried the protests that formed outside the homes of some conservative justices, accusing activists of trying to intimidate the court.
The unprecedented leak of Alito's draft opinion blew a hole in the cloak of secrecy normally shrouding the court's internal affairs. It drew harsh scrutiny from the court's critics, many of whom were already concerned about the politicization of the country's most powerful deliberative body, where justices are appointed for life.
Roberts vowed that the work of the court "will not be affected in any way" by the leak, which he described as a "betrayal" intended to "undermine the integrity of our operations."
The leak had clearly had an impact, however. Tall fencing was set up around the court building afterward, and Attorney General Merrick Garland directed the U.S. Marshals Service to "help ensure the Justices' safety."
In 1973, the U.S. Supreme Court’s ruling in Roe v. Wade recognized that the decision whether to continue or end a pregnancy belongs to the individual, not the government. Roe held that the specific guarantee of “liberty” in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.
Since Roe, the Supreme Court has repeatedly reaffirmed that the Constitution protects for abortion as an essential liberty, which is tied to other liberty rights to make personal decisions about family, relationships, and bodily autonomy.
U.S. Supreme Court Takes Away the Constitutional Right to Abortion
In June 2022, in a devastating decision that will reverberate for generations, the U.S. Supreme Court has abandoned its duty to protect fundamental rights and overturned Roe v. Wade, ruling there is no constitutional right to abortion. The ruling in Dobbs v. Jackson Women’s Health Organization abandons nearly 50 years of precedent and marks the first time in history that the Supreme Court has taken away a fundamental right.
The Court’s decision will likely lead to half of U.S. states immediately taking action to ban abortion outright, forcing people to travel hundreds and thousands of miles to access abortion care or to carry pregnancies against their will, a grave violation of their human rights. Read more on the Court’s ruling here.
Summary
In its 1973 decision Roe v. Wade, the Supreme Court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. For the first time, Roe placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring it the highest degree of constitutional protection, known as “strict scrutiny.”
The Supreme Court required the state to justify any interference with the right to access abortion by showing that it had a “compelling interest,” and held that no interest was compelling enough to ban abortion before viability. After the point of viability, the state could ban abortion or take other steps to promote its interest in protecting the fetus. Even after that point, however, abortion must be permitted to protect a patient’s life and health.
In recognizing the right to abortion, Roe was consistent with earlier Supreme Court rulings recognizing a right of privacy that protects intimate and personal decisions—including those affecting child-rearing, marriage, procreation, and the use of contraception—from governmental interference. By guaranteeing the right to make decisions in pregnancy, Roe was critical to advancing gender equality in educational, economic, and political spheres.
At the time Roe was decided in 1973, nearly all states banned abortion, except in certain limited circumstances. Criminal abortion bans contributed to the death of scores of people who were unable to access safe, legal abortion. Under Roe, these bans were unconstitutional, making abortion legal, more accessible, and safer for many pregnant people throughout the country.
While Roe’s legal implications were enormous, even Roe could not make access a reality for everyone, and low-income people, people of color, young people, and others continued to face obstacles to abortion care.
The Case in Depth: Roe v. Wade, 410 U.S. 113 (1973)
Holding: 7–2 decision invalidating a Texas law that prohibited abortions except when necessary to save the life of the mother. The Supreme Court recognized that the right to decide whether to continue a pregnancy comes within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy.
Majority: Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell
Writing for the majority, Justice Blackmun described the right of personal privacy as fundamental, which meant that the most searching legal test would apply to restrictions. He concluded that the right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” At the same time, the Supreme Court rejected arguments that favored “personhood” for fetuses.
Dissent: White and Rehnquist
Justice Rehnquist expressed his “difficulty in concluding . . . that the right of ‘privacy’ [was] involved in this case,” and argued that the rational basis test “traditionally applied in the area of social and economic legislation” was the more appropriate standard. Justice White argued for fetal personhood and accused the majority of an exercise of “raw judicial power.”
The Ruling Explained
On January 22, 1973, the Supreme Court struck down Texas’s criminal ban on abortion and held that the right to abortion is a “fundamental right.”1 In the 7–2 opinion, the Court held that, along with decisions relating to marriage, contraception, education, and family relationships, the decision about whether to continue or end a pregnancy is fundamental to “personal liberty.”2 In doing so, the Court recognized the great “detriment that the State would impose upon the pregnant woman by denying this choice,” including the health and economic risks of being forced to continue a pregnancy.3
Roe had two key parts: First, the Court ruled that, before viability, it is a pregnant person’s decision—not the government’s—whether to continue a pregnancy. Accordingly, the government cannot ban abortion for any reason prior to viability.4
Second, Roe held that, as with other fundamental rights, restrictions on the right to abortion were subject to the most stringent level of constitutional review, often called “strict scrutiny.” This legal standard required that infringements on the right be narrowly tailored to serve a compelling government interest.5 Applying a trimester framework, Roe permitted more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated; crucially, under Roe, the government was not permitted to put its thumb on the scale to pressure pregnant people about their decision whether to continue or end a pregnancy.6
The Roe decision made state abortion bans unconstitutional—and abortion care legal, more accessible, and safer throughout the country.
Soon after, abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to reverse, directly or indirectly, Roe’s guarantee of reproductive freedom. Lawsuits against such restrictions multiplied, with some reaching the Supreme Court. A changing Court issued a series of decisions diluting Roe.
Since 1992, the Court has evaluated abortion regulations under an “undue burden” standard that permits states to restrict abortion as long as burdens on access are not too severe. In practice, courts have upheld a range of restrictions that make abortion more difficult to access, especially for people of color, people living on low incomes, young people, immigrants, and others with limited resources.
Roe binds together an entire class of personal freedoms, all part of the Constitution’s “liberty doctrine.” If Roe is weakened or overturned, it would threaten the constitutional foundations for a range of other liberty rights, including the fundamental right to marry, use contraception, and have children. Read about how Roe and related Supreme Court rulings provide the constitutional foundation for our basic freedoms. Click the image to read more.
This tool by the Center offers an analysis of abortion laws, policies and court rulings in every U.S. state and territory. Based on the analysis, it categorizes states as “Hostile,” “Not Protected,” “Protected” and “Expanded Access.” Click the image to explore the map.
Footnotes