Supreme Court Overturns Federal Abortion Rights Under Roe & Casey - What Do the Opinions Say?

What’s the story?

• The Supreme Court on Friday issued a decision in a case known as Dobbs v. Jackson Women’s Health that overturned past abortion precedents under Roe v. Wade and Planned Parenthood v. Casey. The ruling effectively sends the issue back to the states to determine how restrictive or permissive their abortion policies should be. 
• The case concerned Mississippi’s ban on elective abortions more than 15 weeks into pregnancy except in cases of medical emergencies and severe fetal abnormalities. Mississippi enacted the Gestational Age Act in 2018, although a district court judge blocked it shortly thereafter and appeals have been unsuccessful to date. Mississippi asked the Supreme Court to overrule Roe and Casey because those precedents prohibited most restrictions on pre-viability abortions performed prior to the roughly 23-week viability threshold (the earliest birth a premature infant has survived is believed to be 21 weeks).
• The case was argued in December 2021. In May, a draft majority opinion written by Justice Samuel Alito was leaked to the press in one of the most significant breaches of the Court’s ordinarily tightly-held operations. The leak is still under investigation. In early June, a man who said he was enraged by the leaked draft opinion was arrested at the home of Justice Brett Kavanaugh and charged with attempted murder.
• The Court’s ruling upheld Mississippi’s abortion law and struck down the past abortion precedents under Roe and Casey as wrongly decided. It’s the most significant reversal of Supreme Court precedent since Brown v. Board of Education (1954) held that racial segregation as permitted under Plessy v. Ferguson (1896) was unconstitutional.
• The decision largely broke down along the Court’s 6-3 ideological split, with the conservative justices either joining the majority opinion or writing an opinion concurring in the judgment, and the liberal justices dissenting.

What did the justices in the majority say?

• Justice Samuel Alito wrote the majority opinion and was joined by Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. A number of passages were similar, if not identical, to the leaked draft opinion. Alito’s majority opinion began by discussing the background of abortion law in America:

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.

Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability”, i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” and it sparked a national controversy that has embittered our political culture for a half-century.”

• The majority opinion also discussed Casey, which sought to uphold Roe under the doctrine of stare decisis (letting precedent stand) but also “did a fair amount of overruling” as the justice noted:

“Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.”

• Alito’s majority opinion went on to explain that Roe and Casey must be overturned as unconstitutional:

“We hold that Roe and Casey must be overruled. 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.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

• The majority opinion also noted that contrary to the argument made by the Biden administration’s solicitor general that upholding the Mississippi law could undercut other constitutional rights, the opinion does no such thing and applies solely to abortion:

“Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

• Alito’s majority opinion concluded:

“We end this opinion where we began. Abortion presents a profound moral question. 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.”

• In addition to joining the majority opinion, Justice Clarence Thomas and Justice Brett Kavanaugh filed concurring opinions. Chief Justice John Roberts concurred in the judgment and wrote that while he would have taken “a more measured course” on Roe and Casey overall but agreed with upholding Mississippi’s 15-week abortion ban. He explained: 

“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (pregnancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity.”

What did the dissenting justices say?

• A dissenting opinion was jointly filed by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. The dissent began:

“For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.  

Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.” Casey, 505 U. S., at 850. And the Court recognized that “the State has legitimate interests from the outset of the pregnancy in protecting” the “life of the fetus that may become a child.” Id., at 846. So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life. Ibid.

Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. 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. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.”

RELATED READING

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• What Did the Supreme Court Say About Abortion Rights in Cases Like Roe, Casey, & Others? (5/10/22)
• Supreme Court Confirms Authenticity of Leaked Draft Opinion in Abortion Case - What Does It Say? (5/3/22)
• Supreme Court Hears Arguments in Mississippi Abortion Case (12/1/21)
• Mississippi Asks Supreme Court to Overrule Roe v. Wade in Upcoming Abortion Case (7/23/21)

— Eric Revell

(Photo Credit: jordanuhl7 via Flickr / Creative Commons)