Supreme Court Overturns Roe V. Wade Returning Decision to States
WASHINGTON — The Supreme Court has ended constitutional protections for ending the life of the unborn that had been in place nearly 50 years in a decision by its conservative majority to overturn Roe v. Wade. Friday’s outcome is expected to lead to bans in roughly half the states.
The decision, unthinkable just a few years ago, was the culmination of decades of efforts by opponents, made possible by an emboldened right side of the court that has been fortified by three appointees of former President Donald Trump.
The ruling came more than a month after the stunning leak of a draft opinion by Justice Samuel Alito indicating the court was prepared to take this momentous step.
Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to ending the life of the unborn, were wrong the day they were decided and must be overturned.
“We hold that Roe and Casey must be overruled,” Alito wrote, since the Constitution makes no reference to that right, and no such right is implicitly protected by any constitutional provision.
Authority to regulate the procedure rests with the political branches, not the courts, Alito wrote.
Joining Alito were Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The latter three justices are Trump appointees. Thomas first voted to overrule Roe 30 years ago.
Chief Justice John Roberts would have stopped short of ending the right, noting that he would have upheld the Mississippi law at the heart of the case, a ban on the procedure after 15 weeks, and said no more.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — the diminished liberal wing of the court — were in dissent.
“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.
Thirteen states, mainly in the South and Midwest, already have laws on the books that ban it in the event Roe is overturned. Another half-dozen states have near-total bans or prohibitions after 6 weeks of gestation, before many women know they are expecting.
In roughly a half-dozen other states, the fight will be over dormant bans that were enacted before Roe was decided in 1973 or new proposals to sharply limit when the procedures can be performed, according to the Guttmacher Institute, a research group that supports these rights.
The decision came against a backdrop of public opinion surveys that find a majority of Americans oppose overturning Roe and handing the question of whether to permit it entirely to the states. Polls conducted by The Associated Press-NORC Center for Public Affairs Research and others also have consistently shown about 1 in 10 Americans want it to be illegal in all cases. A majority are in favor of the procedure being legal in all or most circumstances, but polls indicate many also support restrictions especially in the later months.
The Biden administration and other defenders of these rights have warned that a decision overturning Roe also would threaten other high court decisions in favor of other rights.
The liberal justices made the same point in their joint dissent: The majority “eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. 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.”
But Alito contended that his analysis addresses only this procedure only.
Whatever the intentions of the person who leaked Alito’s draft opinion, the conservatives held firm in overturning Roe and Casey.
In his draft, Alito dismissed the arguments in favor of retaining the two decisions, including that multiple generations of American women have partly relied on the right to gain economic and political power.
Changing the composition of the court has been central to the pro-life side’s strategy. Mississippi and its allies made increasingly aggressive arguments as the case developed, and two high-court defenders of these rights retired or died. The state initially argued that its law could be upheld without overruling the court’s precedents.
Then-Gov. Phil Bryant signed the 15-week measure into law in March 2018, when Justices Anthony Kennedy and Ruth Bader Ginsburg were still members of a five-justice majority that was mainly protective of these rights.
By early summer, Kennedy had retired and was replaced by Justice Brett Kavanaugh a few months later. The Mississippi law was blocked in lower federal courts.
But the state always was headed to the nation’s highest court. It did not even ask for a hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals, which ultimately held the law invalid in December 2019.
By early September 2020, the Supreme Court was ready to consider the state’s appeal.
The court scheduled the case for consideration at the justices’ private conference on Sept. 29. But in the intervening weeks, Ginsburg died and Barrett was quickly nominated and confirmed without a single Democratic vote.
The stage now was set, although it took the court another half year to agree to hear the case.
By the time Mississippi filed its main written argument with the court in the summer, the thrust of its argument had changed and it was now calling for the wholesale overruling of Roe and Casey.
The first sign that the court might be receptive to wiping away the constitutional right came in late summer, when the justices divided 5-4 in allowing Texas to enforce a ban on the procedure at roughly six weeks, before some women even know they are expecting. That dispute turned on the unique structure of the law, including its enforcement by private citizens rather than by state officials, and how it can be challenged in court.
But Justice Sonia Sotomayor noted in a searing dissent for the three liberal justices that their conservative colleagues refused to block “a flagrantly unconstitutional law” that “flouts nearly 50 years of federal precedents.” Roberts was also among the dissenters.
Then in December, after hearing additional arguments over whether to block the Texas law known as S.B. 8, the court again declined to do so, also by a 5-4 vote. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” Roberts wrote, in a partial dissent.
In their Senate hearings, Trump’s three high-court picks carefully skirted questions about how they would vote in any cases.
But even as Democrats and rights supporters predicted Kavanaugh and Gorsuch would vote to upend these rights if confirmed, the two left at least one Republican senator with a different impression. Sen. Susan Collins of Maine predicted Gorsuch and Kavanaugh wouldn’t support overturning the these cases, based on private conversations she had with them when they were nominees to the Supreme Court.
Barrett was perhaps the most vocal opponent in her time as a law professor, before becoming a federal judge in 2017. She was a member of pro-life groups at Notre Dame University, where she taught law, and she signed a newspaper ad opposing it on demand and defending “the right to life.” She promised to set aside her personal views when judging cases.
Trump, meanwhile, had predicted as a candidate that whoever he named to the court would “automatically” vote to overrule Roe.
Agudas Yisrael of America, in a statement said, “We do not seek to impose our religious beliefs on the broader American society. We are of the view, however, that society, through its laws, should promote a social ethic that affirms the supreme value of life.” Allowing it on demand, the statement read, promotes a social ethic that devalues life.
With reporting by AP
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