How overturning Roe will reverberate through America
| Richmond, Va.
In overturning Roe v. Wade, the Supreme Court has taken the momentous step of ending a federal right to abortion that has existed since 1973, a decision likely to reverberate in American life, politics, and law.
At the start it is almost certain to divide the nation into zones, with about half the states enacting total bans on abortion, and others allowing it.
Why We Wrote This
After almost half a century, Roe v. Wade is no more. The United States will be grappling with the implications for years, if not decades, to come.
The decision’s long-term legal implications remain unclear. Justice Samuel Alito emphasized that abortion is a unique case in that it terminates a life or potential life, and thus the court’s action would not threaten other rights based on reasoning similar to Roe’s. But Justice Clarence Thomas appeared to differ, writing that the court should now reconsider past rulings that protect same-sex marriage, same-sex relationships, and access to contraception.
At the least, the ruling thrusts the Supreme Court directly into the maelstrom of the nation’s polarized politics with a definitive ruling on a highly contested issue, perhaps affecting how millions of citizens view the court’s role in the unique U.S. system of separated institutions that share and compete for power.
“Unprecedented is really the only way to describe it. ... It’s breathtaking. It’s hard to overstate how significant this is,” says Steven Schwinn, a professor at the University of Illinois Chicago School of Law.
In overturning Roe v. Wade, the Supreme Court has taken the momentous step of ending a federal right to abortion that has existed since 1973, a decision likely to reverberate in American life, politics, and law in unpredictable ways for years, if not decades, to come.
At the start it is almost certain to divide the nation into zones, with about half the states enacting total bans on abortion, and others allowing it. Some blue states, such as California, are already planning how to deal with out-of-state travelers in search of the procedure.
The decision’s long-term legal implications remain unclear. Justice Samuel Alito, writing for the majority, emphasized that abortion is a unique case in that it terminates a life or potential life, and thus the court’s action would not threaten other rights that have been based on reasoning similar to Roe’s. But Justice Clarence Thomas, in a concurrence, appeared to differ, writing that the court should now reconsider past rulings that protect same-sex marriage, same-sex relationships, and access to contraception.
Why We Wrote This
After almost half a century, Roe v. Wade is no more. The United States will be grappling with the implications for years, if not decades, to come.
At the least, the ruling thrusts the Supreme Court directly into the maelstrom of the nation’s polarized politics with a definitive ruling on a highly contested issue, perhaps affecting how millions of citizens view the court’s role in the unique U.S. system of separated institutions that share and compete for power.
“Unprecedented is really the only way to describe it. ... It’s breathtaking. It’s hard to overstate how significant this is,” says Steven Schwinn, a professor at the University of Illinois Chicago School of Law.
The ruling in Dobbs v. Jackson Women’s Health, a Mississippi abortion case, broke along the Supreme Court’s ideological fault lines, albeit with some disagreement within the court’s conservative majority.
Justice Alito wrote the majority opinion – as he wrote the draft opinion leaked in early May – and there seems very little difference between the two. Like the leaked draft, Friday’s opinion overturns the constitutional right to abortion, and as with the leaked draft, Justice Alito emphasizes that the elimination of the right to abortion doesn’t endanger other unenumerated constitutional rights.
“We hold that Roe and Casey must be overruled,” he wrote, referring to the 1992 case, Planned Parenthood v. Casey, that affirmed Roe while allowing states to impose limits for the health of the woman or fetus. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Abortion is not outlawed in America, Justice Alito stressed, but it is not a constitutional right.
The Supreme Court has never overturned a recognized constitutional right, however. And Chief Justice John Roberts, in a solo concurrence, said that the court should have continued to show that restraint.
“I would take a more measured course” than the majority, he wrote.
Roe and Casey are flawed, he added, but the court should not have overturned the right to abortion when it could have simply upheld the Mississippi law in question, which bans abortion 15 weeks into a pregnancy.
“Surely we should adhere closely to principles of judicial restraint here,” he wrote.
“We dissent”
Typically written by one justice and “joined” by others, the dissent in Dobbs eschewed that tradition, with the three members of the court’s liberal wing – Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor – sharing authorship.
“When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship,” they wrote. “Today, the Court ... says that from the very moment of fertilization, a woman has no rights to speak of.”
Saying the majority opinion rested on the “proclivities of individuals” rather than on the law, they foresaw a loss of respect for the court as well as a devaluing of women’s rights and health in the United States.
“With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”
The Supreme Court’s ruling in Dobbs may only be the beginning, the dissent warned.
The right to abortion was protected by the due process clause of the 14th Amendment. The clause – that no state shall “deprive any person of life, liberty, or property, without due process of law” – has been interpreted over the decades to protect a number of rights not explicitly mentioned in the Constitution, including the right to interracial and same-sex marriage and the right to contraception and abortion.
Those due process rights “are all interwoven – all part of the fabric of our constitutional law,” wrote the dissenting justices.
“Faced with all these connections,” they added, “the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights.”
“Should the audience for these too-much-repeated protestations be duly satisfied?” they ask. “We think not.”
Regardless of how the court handles questions arising from Friday’s ruling, the decision in Dobbs marks an unprecedented shift in constitutional law. The nature of that shift, according to Justice Alito, is that the Supreme Court should defer to the people – at least when it comes to abortion.
“In my judgment, on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral,” he wrote.
“The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.”
The leak of the draft opinion by Justice Alito in early May, which made it clear that overturning Roe was a likely result of Dobbs v. Jackson, set the stage for Friday’s release of the final ruling. Both sides in the debate were poised for explosive news.
A victory decades in the making
Anti-abortion activists were overjoyed at what they saw as a long-sought victory that had been won by years of hard step-by-step effort. To them the high court has made a moral choice to support life.
“This is a monumental expansion of human rights and an excellent step forward towards creating a culture of life and a society that respects life,” says Herb Geraghty, executive director of Rehumanize International, an anti-abortion group based in Pittsburgh that follows a “consistent life ethic” and is opposed to violence of any kind.
But some still described their victory as limited. The court ruling bans a federal right to abortion, but it returns the issue to the states for their consideration and decisions. Thirteen states have trigger laws that will take effect within days, now that Roe is no longer in force. Another seven will likely enact a ban within weeks or months.
Guttmacher Institute
Beyond that, many predominantly blue states will retain or even bolster their rights to abortion. For many in the anti-abortion movement, a national ban is their ultimate goal.
The fact that abortion will only be expanded in some places is “extremely concerning,” says Geraghty.
Abortion-rights activists said they would continue to work to protect what they see as a fundamental right for women.
The first thing Jeni Keller, an activist in Mason, Ohio, did was call her local Planned Parenthood chapter and make an appointment for her 16-year-old to get an IUD. Ohio is one of the states preparing to ban or severely restrict abortion.
It’s “unbelievable that a 16-year-old would be forced to give birth against their will. ... That they’d be forced to carry a pregnancy to term because the government says so is absolutely horrifying,” Ms. Keller says.
Elaina Ramsey, executive director of Faith Choice Ohio, says, “We are not surprised by this ruling. But we still feel the gravity and grief of the moment. We lament the court’s decision.”
Ms. Ramsey says that as a woman and a woman of color, she has watched as the court slowly chipped away at some of her fundamental rights.
“Black folks, brown folks have always had to make a way, seek our own survival. And now, unfortunately, a lot of white folks are understanding that their rights also are being taken away,” she says.
Unsettling “settled law”
To many legal experts, one of the most notable aspects of the Dobbs decision was that it overturned a precedent long described as “settled law,” even by some of the justices who voted in the majority to scrap Roe.
Stare decisis, the legal principle of using precedent to determine the outcomes of litigation, does not always rule the day. But the Supreme Court has never before overturned precedent to take away a right, says Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.
“All the other times that the court has overturned long-standing settled precedent, it was to grant a right, like the right to interracial marriage or the right to gay marriage,” says Professor Gostin.
Some experts think the Dobbs decision may herald the loss of other settled rights in the future. Roe was based on an unenumerated (unwritten in the Constitution) right to privacy. But if one unenumerated right can be reversed, so might others, such as same-sex marriage, that are similarly rooted in a perception that the nation’s founding documents guarantee its citizens a zone of personal autonomy.
“This court I think will jump at opportunities to overturn cases like Griswold, dealing with the right to contraception; Lawrence v. Texas, dealing with the right to consensual adult sexual conduct; and even Obergefell,” which established the right to same-sex marriage, says Professor Schwinn of the University of Illinois Chicago School of Law.
Justice Alito wrote explicitly in today’s Dobbs ruling that this was not the case, and that the majority’s reasoning applied only to abortion. Abortion is inherently different from marriage, or procreation, because it involves the termination of life or potential life, he wrote.
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” says the Dobbs opinion.
But Justice Thomas, writing in a concurrence, said otherwise. He wrote that in future cases the court should now reconsider all of its “substantive due process precedents,” including Griswold, Lawrence and Obergefell.
It is not entirely clear what the full implications of this position are, and whether other justices would be reluctant to sign onto it, says Professor Schwinn.
But Justice Alito simply saying that Dobbs is only about abortion does not necessarily make it so, he says.
“There’s plenty in the Alito opinion that lays the groundwork for overturning other rights,” says Professor Schwinn.
Conservative scholars point out that Justice Thomas couldn’t get any other justices to sign on to his concurrence, meaning those other rights may not come under immediate scrutiny.
“Several members of the court went out of their way to say that nothing in today’s decision threatens or casts doubt on those other cases,” said Allyson Ho, partner at Gibson, Dunn & Crutcher LLP, in a webinar hosted by the Federalist Society. “With only Justice Thomas’ concurrence – and no other justice joining it ... probably the smart money will be on it being quite a while before there are four votes to [hear] a case to undertake that analysis.”
“This is just the beginning”
Hannah Sellars walks toward the Bell Tower outside the Virginia statehouse, where abortion-rights activists gathered in protest just hours after the Supreme Court released its decision. In Virginia, one of the states where abortion is still legal, recently elected Republican Gov. Glenn Youngkin announced that he will now seek to ban most abortions after 15 weeks of pregnancy.
“My first thought was that this is just the beginning of women’s rights getting taken away,” says Ms. Sellars, who owns a studio nearby.
She can’t help but think about the abortion she had a decade earlier – when she was a teenager, and “just didn’t have her life together.” Anti-abortion activists assume that women treat abortions like birth control, getting them “willy-nilly,” says Ms. Sellars. But she says that’s not the case, and it was an incredibly difficult decision.
“If I didn’t have an abortion, I wouldn’t have my business now,” she says. “I wouldn’t have had the chance to build my life.”
When Leslie Rubio and Tara Morand heard the news, they left the Richmond office where they work in real estate. They stood on the sidewalk and screamed.
“We’re both mothers,” says Ms. Rubio. She pauses, before adding, “I’ve had an abortion. I’m not ashamed of it. It feels awful, but sometimes it’s necessary.”
“My entire body is reacting right now,” says Ms. Morand, holding a pink Planned Parenthood poster.
“I’ve passed that time in my life,” she adds, before she starts to cry and covers her mouth. “But for young girls today, their lives ...” Ms. Morand trails off before breaking into more tears.
“Double down with compassion”
Meanwhile, the Rev. Samuel Rodriguez, pastor of New Season Church in Sacramento, California, and president of the National Hispanic Leadership Conference, says anti-abortion activists need to “put the same energy into demonstrating mercy and compassion as we have our activism.”
Mr. Rodriguez says he wants to see the largest adoption movement in American history.
“My concern has always been this unbridled advocacy while the baby is in the womb. We need to be very holistic. We need to be pro-life from the womb to the tomb,” he says via phone. “Now we have this victory.
“We must double down with compassion, come alongside women who are making very difficult decisions ... show empathy toward women who have had [abortions] and women that have difficult decisions to make, especially those because of their social economic reality.”
