In 6-to-3 Ruling, Supreme Court Ends Nearly 50 Years of Abortion Rights

 

In 6-to-3 Ruling, Supreme Court Ends Nearly 50 Years of Abortion Rights

Adam Liptak

June 24, 2022, 10:16 a.m. ETJune 24, 2022

June 24, 2022

Adam Liptak

https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html

 

WASHINGTON — The Supreme Court on Friday overturned 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.

 

“Roe was egregiously wrong from the start,” Justice Samuel A. Alito Jr. wrote for the majority in the 6-to-3 decision, one of the most momentous from the court in decades.

 

Bans in at least eight states swiftly took effect after they enacted laws meant to be enforced immediately after Roe fell. More states are expected to follow in the coming days, reflecting the main holding in the decision, that states are free to end the practice if they choose to do so.

 

The decision, which closely tracked a leaked draft opinion, prompted celebrations and outcries across the country, underlining how divisive the topic of abortion remains after decades of uncompromising ideological and moral battles between those who see making the choice to terminate a pregnancy as a right and those who see it as taking a life.

 

The outcome, while telegraphed both by the leaked draft opinion and positions taken by the justices during arguments in the case, nonetheless produced political shock waves, energizing conservatives who are increasingly focused on state-by-state-fights and generating new resolve among Democrats to make restoring abortion rights a central element of the midterm elections.

 

Protests swelled across the country on Friday evening. Outside the Supreme Court, thousands of abortion rights supporters demonstrated alongside small groups of celebrating anti-abortion activists, who blew bubbles. Throngs spilled into the streets in large cities like Los Angeles, Chicago and Philadelphia, and smaller crowds gathered in places like Louisville, Ky., and Tallahassee, Fla.

 

Speakers at some rallies exhorted abortion rights supporters to take their anger to the polls during the midterm elections in November, a point echoed by President Biden, who said the court’s decision would jeopardize the health of millions of women.

 

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 ruling.

 

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.”

 

Justice Alito’s majority opinion not only sustained the Mississippi law but also said that Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding, should be overruled.

 

The reasoning in Roe “was exceptionally weak, and the decision has had damaging consequences,” Justice Alito wrote. “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.”

 

Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett joined the majority opinion.

 

In an anguished joint dissent, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote that the court had done grave damage to women’s equality and its own legitimacy.

 

“A new and bare majority of this court — acting at practically the first moment possible — overrules Roe and Casey,” they wrote, adding that the majority had issued “a decision greenlighting even total abortion bans.”

 

The dissent concluded: “With sorrow — for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”

 

The decision left important questions unanswered and revealed tensions among the five justices in the majority.

 

One open question was whether the Constitution required exceptions to abortion bans for the life or health of the mother, for victims of rape or incest or for fetal disabilities. The majority opinion noted that Mississippi law made exceptions for medical emergencies and fetal abnormalities, but it did not say that those exceptions were required.

 

In a concurring opinion, Justice Kavanaugh indicated that an exception for the life of the mother may be required, but he did not say so in so many words. “Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother,” he wrote. “Some statutes also provide other exceptions.”

 

But some of the recent state laws were close to categorical, the dissenters wrote.

 

“Some states have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home,” the dissenting opinion said. “They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life.”

 

Another open question is whether other precedents are now at risk.

 

Justice Alito said the court’s ruling was limited.

 

“To ensure that our decision is not misunderstood or mischaracterized,” he wrote, “we emphasize that our decision concerns the constitutional right to abortion and no other right.”

 

But Justice Thomas, a member of the majority, issued a concurring opinion that sent a different message. He wrote that it was strictly true that the majority opinion addressed only abortion, but he said that its logic required the court to reconsider decisions about contraception, gay sex and same-sex marriage.

 

“We have a duty to ‘correct the error’ established in those precedents,” he wrote, quoting an earlier opinion.

 

Justice Kavanaugh took the opposite approach in his concurring opinion, saying the precedents identified by Justice Thomas were secure.

 

The dissenters, noting that Justice Thomas “is not with the program,” said that “no one should be confident that his majority is done with its work.”

 

Promises, the dissenters said, were pointless.

 

“The future significance of today’s opinion will be decided in the future,” they wrote. “And law often has a way of evolving.”

 

Chief Justice Roberts, who voted with the majority but did not embrace its reasoning, said he would have discarded only one element of Roe: its prohibition of abortion bans before fetal viability.

 

The right to abortion, he wrote, should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further — certainly not all the way to viability.”

 

The chief justice added: “The court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

 

Justice Alito, once a close ally of the chief justice, said that was a recipe for turmoil.

 

“If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all,” he wrote.

 

In challenging the law, Mississippi’s sole abortion clinic focused on the 14th Amendment, which says that states may not “deprive any person of life, liberty or property without due process of law.” Justice Alito wrote that the amendment, adopted in 1868, had not been understood to address abortion, which he said was at the time a crime in most states.

 

The joint dissent responded that only men had participated in the adoption of the amendment. “So it is perhaps not so surprising,” they wrote, “that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our nation.”

 

These days, Justice Alito wrote, women have political clout. “In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots,” he wrote.

 

In his concurring opinion, Justice Kavanaugh wrote that states could not forbid their residents from traveling to other states to obtain abortions. That was scant comfort for women too poor to travel, the dissenters responded.

 

They added that the majority had left open the possibility that Congress could enact a nationwide ban. Were that to happen, “the challenge for a woman will be to finance a trip not to New York [or] California but to Toronto.”

 

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 Roberts 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.

 

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak • Facebook