Civic Register
| 5.10.22
What Did the Supreme Court Say About Abortion Rights in Cases Like Roe, Casey, & Others?
How do you feel about the Supreme Court’s past rulings on abortion rights?
What’s the story?
- The Supreme Court is expected to issue its decision on Mississippi’s 15-week abortion ban before it concludes its current term in late June or early July.
- While the contents of a leaked draft opinion indicated that a majority of the Court is prepared to overturn precedents under Roe v. Wade and Planned Parenthood v. Casey, the leaked draft isn’t official and the Court’s holding on the matter won’t be known until the official opinion comes out.
- Although Roe and Casey are perhaps the Supreme Court’s best known abortion-related cases, there have been several other notable decisions on the topic over the last few decades. Here’s a look at what the Court said about abortion rights in its most prominent and lesser known opinions:
Roe v. Wade (1973)
- At the time Roe v. Wade came before the Supreme Court in 1973, abortion was illegal in 30 states and legal in 20 states only under certain circumstances, such as in cases of rape or when the women’s health was jeopardized.
- In Roe v. Wade, the Court held in a 7-2 decision that a woman’s right to terminate her pregnancy was constitutionally protected under the 14th Amendment personal privacy rights, and that only compelling state interests can justify limitations on that decision.
- The Court held the state’s interest in protecting the mother’s health begins at the end of the first trimester of pregnancy, and its interest in protecting the fetus begins at the point of viability.
- While the Court didn’t address the point at which life begins, it defined viability as the point at which the fetus is potentially able to survive outside of the womb and held that the unborn aren’t afforded the 14th Amendment’s protections that extend to a “person”. (The timeframe of viability has advanced earlier in pregnancy over the years due to medical advances and is typically around 23 to 24 weeks but is as early as the current record of 21 weeks.)
Doe v. Bolton (1973)
- The Supreme Court issued a second landmark abortion rights ruling in 1973 on a 7-2 margin with Doe v. Bolton, which broadened protections for abortion rights under Roe v. Wade.
- While Roe held that states couldn’t make providing abortions illegal, Doe expanded on that by finding that states also can’t use procedural barriers to make abortion access unreasonably difficult. However, Doe also noted that those requirements don't apply to laws protecting the religious and moral beliefs of religious or denominational hospitals and their employees.
- Additionally, Doe v. Bolton also provided a definition for “health” in terms of women’s abortion rights which found, “physical, emotional, psychological, familial, and the woman’s age… All these factors may relate to health.”
Harris v. McRae (1980)
- Following the adoption of the Hyde Amendment in 1977, which prohibited the federal government from funding abortion services through Medicaid, and similar state-level laws restricting government funding for abortion, legal challenges to those laws reached the Supreme Court.
- The Court held in Harris v. McRae that states participating in Medicaid weren’t obligated to fund abortions and that a woman’s freedom of choice with respect to abortion didn’t carry “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”
- Additionally, the Court held that the coincidence of funding restrictions on abortion that align with the doctrine of the Catholic Church didn’t consitute an establishment of religion.
Planned Parenthood v. Casey (1992)
- In Planned Parenthood v. Casey, the Supreme Court overturned the trimester standard outlined under Roe and opted in favor of a viability standard that allowed states to adopt restrictions on first trimester abortions as long as they don’t unduly burden a woman’s efforts to obtain an abortion before the fetus reaches viability.
- It also reaffirmed Roe in three other ways by holding that a woman has a right to an abortion prior to viability; the state can restrict post-viability abortions as long as there are exceptions for the woman’s health; and that the state has legitimate interests in protecting the woman’s health and the life of the fetus.
- The case concerned abortion regulations in the state of Pennsylvania, and the Court’s holdings resulted in Pennsylvania’s 24-hour waiting period, informed consent, parental notification, and record-keeping requirements being upheld; while the state’s spousal notification requirement was struck down.
Stenberg v. Carhart (2000)
- In Stenberg v. Carhart, the Supreme Court considered a Nebraska law that banned partial-birth abortions and excluded an exception for the mother’s health. The state argued a particular method of partial-birth abortion was never medically necessary, so therefore a maternal health exception was unnecessary.
- Partial-birth abortions are known in technical terms as dilation and evacuation (D&E) abortions and “intact D&E” or dilation and extraction (D&X) abortions. D&E procedures involve the partial vaginal delivery of a living fetus after 12 to 24 weeks of pregnancy, at which point fetal tissue is removed and the fetus is potentially crushed or dismembered to allow for removal. In D&X abortions, which may occur if the fetus presents feet first during a intact D&E abortion and typically happen after 16 weeks, the fetus is removed intact in one pass rather than through after several steps. The Nebraska law sought to ban D&X abortions.
- The Court held in a complex and contentious 5-4 decision delivered by Justice Stephen Breyer that Nebraska’s law violated Roe and Casey because it placed an undue burden on a woman’s right to have an abortion because providers who use it fear prosecution, and because it didn’t include an exception for maternal health.
Gonzales v. Carhart (2007)
- Following the Court’s decision in Stenberg v. Carhart, the Partial-Birth Abortion Ban Act was enacted on a bipartisan basis by Congress and President George W. Bush in 2003. It banned intact D&E or D&X abortions and found them to not be medically necessary. The law was supported by most Republicans and about a third of Democrats, including then-Sen. Joe Biden (D-DE), but opposed by notable Sens. Hillary Clinton (D-NY), Chuck Schumer (D-NY), and Bernie Sanders (I-VT).
- The federal law was immediately challenged and declared unconstitutional by lower courts, which appellate courts affirmed, so the case ultimately reached the Supreme Court in 2007.
- This time, the Court issued a 5-4 ruling in Gonzales v. Carhart that upheld the law as constitutional despite it not including a maternal health exception. The Court found that because the law in question referred to a specific type of abortion (intact D&E or D&X), it wasn’t unconstitutionally vague, and that the availability of other abortion methods that hadn’t been deemed medically unnecessary meant it wasn’t an undue burden on abortion access.
- The primary difference in the outcome compared to Stenberg v. Carhart was the composition of the Court. Justice Sandra Day O’Connor, who co-authored the majority opinion in Stenberg, had retired and was replaced by Justice Samuel Alito.
Whole Woman’s Health v. Hellerstedt (2016)
- In Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated a Texas law that required abortion-providing physicians to have admitting privileges at nearby hospitals. That law also required abortion facilities meet the same standards as an ambulatory surgical center.
- The Court found that those requirements created an undue burden for abortion access that violated the standards outlined in Casey.
June Medical Services, LLC v. Russo (2020)
- In June Medical Services v. Russo, the Supreme Court struck down a Louisiana law that was nearly identical to the Texas abortion law that was found unconstitutional in Whole Women’s Health v. Hellerstedt.
- The Court issued a 5-4 ruling in the case, with Justice Stephen Breyer writing a majority opinion that was joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan. Chief Justice John Roberts wrote an opinion concurring with the judgment.
— Eric Revell
(Photo Credit: jordanuhl7 via Flickr / Creative Commons)
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It certainly seems that repeated challenges to Roe have failed repeatedly as the Supreme Court has upheld Roe time and time again- that Is until the current Republican Cartel, the Federalist Society, and activist and barely vetted Conservative Justices, all of whom seemingly drunk with power decided all on their own that past rulings and repeatedly re-affirmed reaffirmations of Roe suddenly no longer matter.
No estsblihed law of long standing precedence should be disregarded by the Supreme Court, even temporarily until until the a final judgement is reached as the actuvust judges did for the cluster-f#¢k of any law that Texas drafted to pay vigilantes to get others prosecuted especially for abiding by established law to seek legal abortions - as that law is still legal and will be until the court formerly rukes otherwise.
it is truly a sad day when the Supreme protectors of the established law puts their personal interests above that law even temporarily, a law that applies to everyone - includung themselves until a change to that law is formerly made.
Supreme Court Justices especially must be held to a higher ethical standard and lying about how they would interpret challenges to Roe in their confirmation hearings is a serious breech of ethics for anyone charged with being the ultimate arbiter of US law. One might have chsnged their mind but not three or four concurrently.
Federal Civil Servants are held to a standard of not doing anything that would even appear to be a breech of the public trust and many have been summarily fired for this. Shouldn't Supreme Court Justices be held to this standard at the very least?
Where are all the Republicans rushing in to solve the formula shortage, seeing they care SO MUCH about keeping babies alive???
(crickets)
At the end of his show Bill Maher always have a segment on 'New Rules'. One New Rule discussed making Mars liveable for us. He stated the only issue was we live on earth and we must make it liveable for us. Earth is our home. I totally agree with him on that subject.
Why am I discussing this because we have people who are living now and we need to take care of them we need to fight for people who are alive now.
We need to assist the disabled instead if acting like they do not exist. We need to assist the homeless instead passing a law to make it a crime. We need to decrease the frequency of gun violence instead of passing laws stating no background checks or permits.
We need to protect the voting rights instead writing crazy laws about only using your first ID card, getting rid of voting ballets to mail in or early voting. Stop the gerrymandering already.
We need to improve health care instead of letting people die in their cars/ home or throwing them out in the street while still in hospital gowns.
We need better laws for child abuse, rape, murder, and human trafficking. If a woman is rape and force to keep the child she should be able to file a lawsuit that the rapist will not have any contact with the child and the rapist or rapist family must pay child support.
If you are not going to support the mother with cost of care or raising the child you have no say in whether she aborts. This is the woman's decision. Yeah it seems unfair but it is unfair that a specific group (men) have been telling and controlling other groups what they can and not do.
I am tired of my body and my sisters (other women's body) being discussed as if we do not have any rights.
The Supreme Court had previously decided that abortion was a privacy right. The recent leaked draft opinion from the federalist society court is set to take away all privacy rights not expressly written into the constitution and plunge us into a fascist dictatorship where people have no rights at all. The right to live in a society free of theological dictates, where women are treated as vessels to procreate devoid of free will as well as who we love, what we read, what we do, etc. is the internet mentioned in the constitution, phones, automobiles, televisions....everything is at stake with the russiapublican party and the federalist court. Vote like your freedoms are on the line because they are!
Roe v. Wade (1973) is a 50 year old Supreme Court precedence with 6 subsequent Supreme Court Cases making it also 50 years of settled case law.
1)Doe v. Bolton (1973)
2)Harris v. McRae (1980)
3) Planned Parenthood v. Casey (1992)
4) Stenberg v. Carhart (2000)
5) Gonzales v. Carhart (2007)
6) June Medical Services, LLC v. Russo (2020)
There have also been 4 Senate Hearings where sitting Supreme Court Justices acknowledged Roe v Wade (1973) is a Supreme Court precedence and settled case law:
1) Roberts (2005) "settled as a precedent of the court"
2) Alito (2006) “important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time"
3) Gorsuch (2017) "Roe is a precedent. Precedent is the anchor of law. I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. That is the law of the land. I accept the law of the land”
4) Kavanaugh (2018) "It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. The Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times."
Any change means we have a serious ethics problem that requires Congress to resolve since we have 4 justices that misrepresented themselves in their Senate testimony.
Legal opinion says it's minimally fraud, possibly perjury depending on outcome.
https://www.npr.org/2022/05/03/1096108319/roe-v-wade-alito-conservative-justices-confirmation-hearings
The dumbest man to ever become POTUS is Donald Trump. Mitch McConnell took advantage of this idiot and convinced him a 50 yr. old bill should be banned. I believe "we the people" of this country is 60% female. I am observing that the Republican party has become the party of the Repulsives. Please be strong enough to consider the number of people you are hurting by attempting this ban. You can no longer "win" anymore so you are determined to hurt women and people of color. DO NOT FOLLOW the DUMBEST man to ever become POTUS. Too many people will vote against you for being oppressive. D. Bauman
Get rid of Democrats who are Republicans in disguise.
Ever since the GOP wouldn't even consider Obama's Supreme Court nominee, I have lost all respect for our judicial system. Going forward I will do everything and anything I can to undermine it
SCOTUS has infringed on the autonomy of birthing people's rights to make decisions regarding their bodies and their healthcare. I am terrified wondering what SCOTUS will do next. I am holding hope that state governments will uphold the reproductive rights of all citizens.
It is disgraceful that we are going back 50 years. Religion should have nothing to do with what happens to women who are pregnant. Bodily autonomy is a basic human right. If Christian's don't want to have abortions they have every right not to get one; what is unacceptable is choosing what happens to other's bodies. Disgusting.
If Congress in the house is not too careful in the midterm elections the following persons and major player Trump will be reelected if not too careful and truth doesn't come out on January 6 the truth and all those supporters and governors that are being elected right and left before I's will be his winning point to getting victory, FBI CIA those who know what January 6 at four and Trump and set by an allowed it The only way that will happen as to the Republicans that support an allies of Democrats join your force and take down those margie Te greens McCarthy and Ted Cruz those that support trump because they want to have him reelected once again if we're not careful our democracy will erode and we will be no more united
Women have it hard enough, now the SCOTUS and Republicans are trying to make it harder...
"Not going to ban abortion, just make it the states call" - Thats what they say... Well many states are going to ban abortion and make reproductive care difficult or illegal.
All the pain and suffering this is going to cause over the next decade... Only positive here is that it could finally bury the republican party. i don't think they realize the voting beast this is going to unleash.
Here's the thing - in a regular pregnancy after 20 weeks it is no longer called a miscarriage if that pregnancy ends, it's called a stillbirth and the parents can name, have a service, and bury that "child" - so it does matter about boundaries to elective abortions AND it is no longer just YOUR BODY - there definitely is another body that can live without you
and this isn't the 60's - no one talks about why these women aren't using birth control let alone condoms (say hello to STI's) or the morning after pill - where is their accountability and responsibility for their CHOICES
AND NO ONE IS TALKING ABOUT RAPE OR INCEST - that's entirely different
I do not believe in taking another human beings life. With that being said, 15 years ago, I lost a baby at 16.5 weeks. If I would have been forced to keep that baby, I would have most likely died of infection. No one can make the decision about their pregnancy but the mother. How about we mandate vasectomy's for all child molester's? I feel that would be a much better usage of time and resources considering I pay you for what you are doing.
Supreme Court secrecy? There is nothing in the constitution about Supreme Court secrecy. This must be a president with out accountability. The the only thing they want to do is find the whistle blower. Should start at Clarence Thomas and wife January 6 insurrection and then the political hacks that were appointed!
The Supreme Court has now established that they are partisan clowns. We will not go back to women as second class citizens.
Justice Clarence Thomas on Friday expressed dismay at the recent leak of a draft Supreme Court opinion that would strike down Roe v. Wade, comparing it to "an infidelity" and saying it has changed the culture of the nation's highest court
clarence look yourself in the mirror. do you even understand the meaning of infidelity having committed the same at least with the people you portend to serve by participating in the insurrection? amongst other accusations?
shame on you
shame on scotus
shame on congress
I find it interesting that, of all people, Justice Clarence Thomas that it an unthinkable a bleach of trust by who? Clarence and Ginni Thomas waded into the political pool of insurrection January 6! Casing dough on the supreme courts and now the are finding out what accountability is when Thomas, Gorsuch, Kavanaugh and Barrett voted with the inaccurate draft opinion's author by Samuel Alito to overrule Roe v, Wade. Beside that they lied under oath that it's establish law president or that overturning Roe v. Wade would cause under do Harm and Berdon to all women. Constitution does not refer to fetus or unborn having any rights!
I thought republicans wanted small government, not the Big Brother style authoritarianism. They cloak this in loving babies, but cut the child tax exemption...so not so much.
this is about control, and the erotion of our most basic libery- bodily autonomy.
I want to live in a free country, govenened by logic, science and reason. not a theocracy. keep church and state seperate.
Regarding what the Court is planning to say:
If you have not already heard or read:
Justice Alito hearkens back to dark times – The Seattle Times
https://www.seattletimes.com/opinion/hearkening-back-to-dark-times/
Alito is comfortable ignoring Stare Decisis, instead he looks to the writings of a 17th century misogynist to support his warped views on abortion.
Meet Sir Matthew Hale.
Hale executed at least two women for witchcraft in the Bury St Edmunds witch trials and he believed that capital punishment should extend to those as young as fourteen.
More to the point, regarding women he believed
• women were property.
• that juries should be suspicious of any woman’s claim of being raped and,
• that a husband cannot be charged with raping his wife
Alito even quotes another fanatic, Henry of Bracton, (c. 1210 – c. 1268) was an English cleric and jurist.
You can read about him in the article.
It is revealing that Alito is comfortable quoting strict Puritans and judges who were also clerics.
Is Alito even fit to serve on the the US Supreme Court if he is willing to subvert separation of religion and state to push a view 2 out of 3 American oppose?
Also see
https://en.wikipedia.org/wiki/Henry_de_Bracton?
https://en.wikipedia.org/wiki/Matthew_Hale_(jurist)?
A Petition To
Protect Roe. Don’t Deny Families Abortion Access! - Action Network
The Action Network is aiming for 51,200 signatures.
https://actionnetwork.org/petitions/protect-roe-dont-deny-families-abortion-access?clear_id=true&source=influencer_an_petition_abortion-access-is-a-family-issue_0522_ptf_craven
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How do I feel about prior SCOTUS decisions regarding abortion rights? Above all, IMHO, the abortion debate is a misogynistic and blatantly RELIGIOUS debate, and frankly, IMHO, Church/State separation should be paramount. Abortion is a MEDICAL matter that should soley be the PRIVATE perogative of a woman, her family, and her health care provider, and definitely NOT within the perview of partisan politians and shady members of the SCOTUS. IMHO, Roe v. Wade would never have come before the Court in the first place were Church/State separation paramount. That said, SCOTUS -- until McConnell blocked Merick Garland -- did an admirable job of blocking the religious right's attempts to overturn Roe v. Wade until the current majority of Christian religious liars (we know who they are) were rushed into power by McConnell, Trump, and the GOP. I'm beyond angry at the gross hypocrisy of this group that interferes even unto the death of the mother in order to "save" something that may not even survive the normal pregnancy/birth process. And if carried to term and born? What are these pioius people doing to see that unwanted child -- not to mention the discarded mother and any other family-- through the rest of its/their life/lives? Nothing, as far as I can see: canon fodder. I'm angry, and utterly disgusted.
I am personally no fan of abortion. I believe that it is a procdure which can, and sometimes is used as a type of birth control. But, I am also not a woman, nor am I married, so I will never be in a position to make such a decision, and don't believe that it is mine, or anyone else but the woman, her husband or boyfriend and their doctor's place to advise, or control whether or not she should have an abortion.
I am not God. I do not know all the details involved in making a decision to terminate a pregnancy. I don't know all the circumstances that have led women to make this decision. And I do not believe that it is good to enforce a blanket ban on abortion.
The past decisions were right. They kept the government's nose out of the decision-making process, and left it up to the women and those around her involved in helping her make the decision.
That was the right thing to do.
It was ok when the right wing loonies were attacking school board members and election workers. Those ladies in Georgia had to move because of death threats. Abortion doctors have been murdered without a peep from Republicans. Now they're looking for "civility" . scumbag hypocrites
We need to keep roe v Wade since majority of Americans don't want it overturned