The Supreme Court struck down Roe v. Wade and Casey v. Planned Parenthood in a 5-1-3 decision on Friday, dismantling the decades-old precedent that protected abortion rights and giving states the go-ahead to dramatically limit access to reproductive health care.
The ruling in the Dobbs v. Jackson Women’s Health Organization case, written by Justice Samuel Alito, was not a surprise. A draft ruling was leaked to Politico and published in early May. Reports indicated at the time that fellow conservative justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett also supported the decision, while Chief Justice John Roberts favored a narrower approach. The final ruling is a hews closely to the leaked draft.
“We hold that Roe and Casey must be overruled,” Alito wrote for the majority. “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.”
“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,” Alito continued.
Abortion is not “deeply rooted in this Nation’s history and tradition,” according to Alito, and, therefore, not protected as a right.
Alito was joined in his decision by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts wrote a separate concurrence while the rump liberal minority of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor filed a joint dissent.
The hardline conservative ruling will now go nationwide: allowing states to implement strict abortion restrictions that will force some people to continue unwanted and unsafe pregnancies. Victims of rape and incest will, in some states, have to go through the traumas of pregnacy, birth, and parenthood or adoption. Babies will be born with health conditions they suffer from and even quickly die from. People who aren’t prepared or don’t want to have children will have to have them anyway.
The ruling does not end abortion rights entirely. Some states have vowed to protect abortion access, and will likely become a safe haven for those seeking the procedures who are able to afford to travel there. It’s unclear how quickly the 22 states that already have laws limiting abortion will put their bans into effect. And most state bans restrict abortion only after a certain point in a pregnancy, often with exceptions.
However, that’s not always the case. In Oklahoma, the GOP-controlled legislature passed a bill that would prohibit all abortions, except if the life of the pregnant person was in danger or a rape had been reported to law enforcement. In other states, Republicans are increasingly pushing abortion restrictions that offer no exceptions for victims of rape or incest.
And some efforts to enshrine abortion rights have failed. Senate Republicans blocked a bill to codify Roe v. Wade in May. The GOP holds an electoral advantage in many states due to district lines and electoral laws.
The case came before the court as conservatives sensed momentum when former President Donald Trump, who promised to only appoint conservatives who would overturn Roe v. Wade, appointed three Supreme Court justices. One of those seats was filled by Trump only after Sen. Mitch McConnell (R-Ky.) refused to allow then-President Barack Obama to appoint a justice to the seat left vacant by Justice Antonin Scalia’s death in 2016. The die was then cast after the death of Ruth Bader Ginsburg weeks before the 2020 election allowed Trump to appoint Barrett to give the conservatives a supermajority on the court.
For this reason, Alito’s majority did not need the vote of Roberts, who did not join the majority and filed a separate concurrence. In his concurrence, Roberts declared that Alito’s opinion was wholly unnecessary to decide the case brought by Mississippi.
“Surely we should adhere closely to principles of judicial restraint, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis” Roberts wrote. “The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”
The liberals joint dissent notes their “sorrow” at the ruling and the pain and hardship it will bring to women now forced to bear children in the states where abortion is now illegal.
“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote.
The liberals also noted that the judicial conservatives are not done stripping Americans of their hard won rights.
“[The court’s decision] eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station,” the liberal justices wrote. “It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”
Indeed, Justice Clarence Thomas declared in a separate concurrence that the majority opinion excising abortion from protection under the 14th amendment’s Due Process Clause should be applied to the decisions that legalized contraception, same-sex marriage and same-sex sex.
“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.
The deck is stacked against supporters of abortion rights. However, many advocacy groups were already planning next steps in the event of Roe v. Wade being overturned.
One is to end the filibuster, a Senate rule that requires 60 votes for most legislation — allowing the minority party to block bills, even if most senators support them. For now, that’s unlikely: Two Senate Democrats, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, oppose ending the filibuster. Even if they did, Democrats likely only have 49 votes in favor of codifying Roe. In the most recent vote, Manchin sided with Republicans to block the bill.
Many groups are also mobilizing to support people seeking abortions by funding travel to and care in states where the procedure remains legal.
Another option is medication abortion, which allows some people seeking to end their pregnancies to do so at home. State-level abortion bans have also targeted medication abortion, but advocates say it’s likely more people will obtain the medication and manage their own abortions should bans go into effect.