The United States Supreme Court overturned Roe v Wade, the landmark 1973 ruling that legalized abortion nationwide. The 6-3 decision sends the general question of the legality of abortion in the US to states, removing federal protections. The decision in Dobbs v Jackson Women’s Health Organization upheld a Mississippi law banning abortion after 15 weeks of pregnancy, a period significantly shorter than that described in Roe and subsequent Supreme Court precedents.
About half of those states are expected to enact near-total or partial abortion bans in the coming days, according to the Guttmacher Institute, which is expected to affect the poor disproportionately and women of color.
This ruling could also open the door for the courts to reconsider access to contraception.
Here are five takeaways from the ruling:
Protesters gather outside the United States Supreme Court as court rules in Dobbs v Women’s Health Organization abortion case, quashing landmark Roe v Wade abortion decision in Washington, US, June 24, 2022 [Michael McCoy/Reuters]
Conservative judges say the constitution does not protect abortion
The core of the majority opinion is that abortion is not explicitly covered in the US Constitution.
The Roe v Wade ruling argued that abortion stems from a right to privacy based on the First, Fourth, Fifth, Ninth, and 14th Amendments.
“The Constitution does not refer to abortion, and any constitutional provision does not implicitly protect such a right,” wrote Judge Samuel Alito, who was joined by Conservative Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Supreme Court members pose for a group photo at the Supreme Court in Washington, DC [File: Erin Schaff/The Associated Press]
The judge’s ruling also rejected that the right to abortion was “rooted in the history and tradition of the nation” or that it was protected as part of a “broader right” to autonomy.
The judges said lawmakers should instead decide the issue.
“It is time to respect the Constitution and return the issue of abortion to the elected representatives of the people,” Alito wrote.
Liberal judges say the US has ‘lost basic constitutional protection.’
The three liberal US Supreme Court justices reacted with “sadness” to the ruling in their dissent, saying the “draconian” decision would reverse women’s rights as “free and equal citizens”.
“The majority would allow states to ban abortion from conception because they think forced childbirth does not imply a woman’s right to equality and liberty at all,” the judges wrote. “Today’s court thinks there is nothing of constitutional significance attached to a woman’s control over her body and her life’s path.”
The judges added that Roe v Wade and the subsequent 1992 ruling Planned Parenthood of Southeastern Pennsylvania v Casey sought to strike a “balance” amid “deeply different views of the “moral[ity]’ of ‘terminating a pregnancy, even in its earliest stage’.”
“Today, the court rejects that balance.”
Thomas calls for access to contraception, and gay rights must be questioned
Judge Clarence Thomas, in his unison, raised the question of whether other rights previously decided should be reconsidered.
He cited three key cases establishing the right to contraception, consensual same-sex relationships, and same-sex marriage, writing: “demonstrably erroneous decisions”.
While he agreed with the majority that nothing in Friday’s decision should be “understood to cast doubt on precedents not related to abortion,” he wrote that the court should “reconsider” the three decisions. And said, “we must correct the error established in those precedents.”
Chief Justice John Roberts says ruling ‘necessary to decide the case for us.’
Chief Justice John Roberts, a conservative-leaning judge who has become the bank’s de facto swing vote, sided with the majority in deciding the Mississippi case but said their decision didn’t have to extend to the Supreme Court—the overthrow of Roe.
“The Court’s decision to overrule Roe and Casey is a serious shock to the justice system — no matter how you view those cases,” Roberts wrote in a separate advisory.
Chief Justice John Roberts has argued that the Supreme Court ruling is Roe v Wade. Didn’t have to undo [Erin Schaff/The Associated Press]
“The [majority’s] advice is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consistent utterance is not necessary to decide the matter for us,” he wrote.
‘The morning-after pill? IUDs? In Vitro Fertilization?’: Liberals Wonder What Comes Next
In their dissenting opinion, judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan warned that the court’s decision could have consequences that could affect birth control and in vitro fertilization forms.
“Further, the Court may be asked questions about the application of abortion rules to medical care that most people view as very different from abortion,” they wrote. “What about the morning-after pill? IUDs (device for intrauterine contraception)? Test tube fertilization?”
In vitro fertilization has become a particular focus of the abortion debate in the US. The process sometimes involves discarding excess embryos or destroying fetuses during pregnancy to increase the chances of success.
Liberal judges warn against a decline in rights.
The liberal judges also warned that the majority’s reasoning — that abortion is not explicitly protected in the US Constitution — threatens a wider decline in rights.
“In the majority view, there is no interest in liberty — because (and only because) the law in the 19th century did not protect women’s choice,” they wrote, referring to the constitution’s edition of the 14th Amendment, which said no state shall “deprive any person of life, liberty, or property without due process of law.”
“But here’s the problem,” they wrote. “The law didn’t (and wouldn’t for ages) protect a wealth of other things either.”
“It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines,” they wrote.
“It did not protect the Griswold-recognized right to use contraception. Incidentally, it did not protect the right recognized in Skinner v Oklahoma … not to be sterilized without consent,” they wrote.
They added: “It is impossible to understand (from logic and principle) how the majority can say that its opinion today does not threaten – not even ‘undermine’ any other constitutional rights.”
