Supreme Court overturns Roe v. Wade, leaves issue up to states
The US Supreme Court has overturned its 49-year-old landmark Roe v. Wade decision that legalized abortion throughout the US, upholding a Mississippi law banning the procedure after 15 weeks of pregnancy – and leaving the issue up to each of the 50 states.
Friday’s opinion by Justice Samuel Alito also overturned a 1992 case, Planned Parenthood v. Casey, in which the court found that state laws restricting abortion should not impose an “undue burden” on women seeking the procedure.
“Abortion presents a profound moral question,” Alito wrote. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The decision was handed down more than eight weeks after a draft version of Alito’s opinion was leaked to Politico — sparking outrage and protests across the country. Crowds of pro-abortion and anti-abortion activists similarly gathered outside the court following Friday’s ruling, though there were no immediate reports of arrests or violence.
“Roe was egregiously wrong from the start,” Alito wrote in language held over from the leaked draft. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Alito was joined in his opinion by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Thomas, Kavanaugh and Chief Justice John Roberts filed separate opinions concurring in Alito’s judgment.
In his concurrence, Roberts questioned whether overturning Roe and Casey was necessary to uphold the Mississippi abortion law, writing that Alito’s opinion was “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.”
“Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman ‘to decide for herself’ whether to terminate her pregnancy,” the chief justice went on before adding that both Alito’s opinion and the dissent by liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan “display a relentless freedom from doubt on the legal issue that I cannot share.”
In his concurrence, Kavanaugh stated: “Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.
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“Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy),” Kavanaugh went on. “The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution.”
Kavanaugh also agreed with Alito that Friday’s decision does not affect past Supreme Court decisions legalizing interracial and same-sex marriage or enshrining the right to use contraception — as abortion advocates had warned after the draft opinion leaked.
“[W]e emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Thomas disagreed, writing in his concurrence that the court should review those precedents and all decisions like Roe and Casey that based on the legal theory of “substantive due process,” which states that rights not enumerated in the Constitution are protected by the 5th and 14th Amendments.
“Because any substantive due process decision is ‘demonstrably erroneous,'” Thomas wrote, “we have a duty to ‘correct the error’ established in those precedents.”
In their dissent, the liberals accused the majority of scrapping what they described as the “balance” struck by Roe and Casey on the abortion issue.
“It says that from the very moment of fertilization, a woman has no rights to speak of,” they wrote of the majority opinion. “A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”
“Whatever the exact scope of the coming [state] laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” they added.
While recent polling has found the majority of Americans wanted Roe v. Wade to be upheld, the decision will allow 22 states to implement total or near-total abortion restrictions.
Get The Post’s latest updates following the Supreme Court’s decision to overturn Roe v. Wade.
Those states include Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming.
Ahead of Friday’s decision, Democrats in Congress attempted to codify Roe v. Wade into federal law, but the bill failed to clear a test vote in the evenly split Senate, only garnering 49 votes last month.
Attorney General Merrick Garland said the Justice Department “will work tirelessly to protect and advance reproductive freedom.” He said in a statement that in addition to protecting providers and those seeking abortions in states where it is legal “we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care.”
The AG made a point of noting that the federal Food and Drug Administration has approved the use of Mifepristone for medication abortions and warned that states could not ban the drug “based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
The case, Dobbs v. Jackson Women’s Health Organization, was argued Dec. 1 and left many legal observers convinced the six-member conservative bloc would uphold the Mississippi law. The future of Roe v. Wade was less clear after oral arguments, though both sides in the case had said that the justices would need to consider the 1973 precedent in deciding the future of the Mississippi law.
The issue made national headlines in early May, when Politico published a leaked draft of Alito’s opinion, an unprecedented breach of the Supreme Court’s closely-guarded decision-making process. Roberts ordered an investigation to identify the leaker, which is ongoing.
With Post wires
