The court upholds law from Mississippi that bans abortion after 15 weeks, opens door to widespread prohibitions on the procedure
Brent Kendall
Brent Kendall Law Bureau Chief, The Wall Street Journal
Jess Bravin Supreme Court Correspondent, The Wall Street Journal
WASHINGTON—A deeply divided Supreme Court eliminated the constitutional right to an abortion, overruling the 1973 Roe v. Wade decision and leaving the question of abortion’s legality to the states.
The court’s decision in Dobbs v. Jackson Women’s Health Organization upheld a law from Mississippi that bans abortion after 15 weeks of pregnancy, roughly two months earlier than what has been allowed under Supreme Court precedent dating back to Roe.
The Supreme Court on Friday overturned Roe v. Wade, effectively ending recognition of a constitutional right to abortion and giving individual states the power to allow, limit, or ban the practice altogether.
The ruling came in the court's opinion in Dobbs v. Jackson Women’s Health Organization, which centered on a Mississippi law that banned abortion after 15 weeks of pregnancy. The Republican-led state of Mississippi asked the Supreme Court to strike down a lower court ruling that stopped the 15-week abortion ban from taking place.
"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," Justice Samuel Alito wrote in the court's opinion.
Alito's opinion began with an exploration and criticism of Roe v. Wade and its holding that while states have "a legitimate interest in protecting ‘potential life,'' this interest was not strong enough to prohibit abortions before the time of fetal viability, understood to be at about 23 weeks into pregnancy."The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning," Alito wrote.
Chief Justice John Roberts agreed that the viability line "never made any sense," but said he would have taken "a more measured course" with this case. Rather than overturn Roe v. Wade altogether, Roberts said he would have continued to recognize a right to get an abortion, and that the right should "extend far enough to ensure a reasonable opportunity to choose, but need not extend any further."
The court's majority took a firmer stance against Roe v. Wade and the subsequent case Planned Parenthood v. Casey, holding "that Roe and Casey must be overruled." They countered the Roberts concurrence by claiming that such an approach "would only put off the day when we would be forced to confront the question we now decide."
The court described how the Roe opinion did not specifically explain where the right to abortion came from, rather it provided several areas of the Constitution that might provide such a right. Alito wrote that the Casey decision "did not defend this unfocused analysis," instead grounding the right in the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.
The court's opinion recognized that the Fourteenth Amendment's Due Process Clause has been found to guarantee certain rights that are not spelled out in the Constitution, but that those rights are "deeply rooted in this Nation's history and tradition." Abortion, the court said, "does not fall within this category," as "such a right was entirely unknown in American law" until the late 20th century.
The earliest sources for a right to an abortion, the Court said, are "a few" state and district court decisions from "shortly before Roe," and "a small number of law review articles from the same time period."
Alito referenced the dissenting opinion from Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, stating that it "is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition.’"
"The dissent's failure to engage with this long tradition is devastative to its position," Alito wrote.
The majority opinion also noted that the dissent did not provide any "serious discussion" of the states' interest in protecting the life of a fetus, while also making clear that the Court's ruling "is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth."
The court then addressed the concept of stare decisis – the tradition of following established court precedent.
"Overruling a precedent is a serious matter," Alito wrote. "It is not a step that should be taken lightly."
Still, he said, if the Supreme Court never overturned precedent, "American constitutional law as we know it would be unrecognizable, and this would be a different country."
The Court then asserted that there are five reasons why Roe and Casey should be overruled: "the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance."
The Court explained that Casey's test of whether a law places an "undue burden" on the ability to get an abortion "has scored poorly on the workability scale," citing the late Justice Antonin Scalia, who said that the test is "inherently standardless."
The majority criticized Casey for its vagueness and ambiguity, and its failure to give a "clear answer" as to how to apply its undue burden test.
The opinion went on to explain that Roe and Casey disrupted other areas of law, claiming that they "have diluted the strict standard for facial constitutional challenges," ignored key judicial principles, and "distorted First Amendment doctrines."
MORE THAN 2 DOZEN STATES TO RESTRICT ABORTION AFTER ROE V WADE OVERTURNED IN DOBBS DECISION
Addressing the issue of reliance, the Court stated that such an interest typically arises "where advance planning of great precision is most obviously a necessity." Alito wrote that Casey itself "conceded that those traditional reliance interests were not implicated because getting an abortion is generally ‘unplanned activity."
The Court explained that Casey's test of whether a law places an "undue burden" on the ability to get an abortion "has scored poorly on the workability scale," citing the late Justice Antonin Scalia, who said that the test is "inherently standardless."
The majority criticized Casey for its vagueness and ambiguity, and its failure to give a "clear answer" as to how to apply its undue burden test.
The opinion went on to explain that Roe and Casey disrupted other areas of law, claiming that they "have diluted the strict standard for facial constitutional challenges," ignored key judicial principles, and "distorted First Amendment doctrines."
MORE THAN 2 DOZEN STATES TO RESTRICT ABORTION AFTER ROE V WADE OVERTURNED IN DOBBS DECISION
Addressing the issue of reliance, the Court stated that such an interest typically arises "where advance planning of great precision is most obviously a necessity." Alito wrote that Casey itself "conceded that those traditional reliance interests were not implicated because getting an abortion is generally ‘unplanned activity."
As for Casey's claim that people have made decisions about their relationships in reliance on abortion being an available option, the Court said that this is not concrete enough, and that "this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’"
Alito then addressed the argument made in Casey that "[t]he American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures.’"
While he recognized that there is indeed "a special danger" that the public will view a decision this way, Alito countered that "we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work."
ABORTION RIGHTS TO EXPAND IN BLUE STATES AFTER ROE V. WADE OVERTURNED
Public reaction to a possible overruling of Roe well before the Court handed down Friday's decision. A leak of a draft opinion by Alito from February that reached the same conclusion caused nationwide debate and promoted pro-choice activist protests at the homes of the six conservative justices.
In addition, dozens of pro-life pregnancy centers were vandalized since the opinion leak, Catholic churches were targeted for protests and unrest, and a suspect was charged with attempted murder for allegedly trying to assassinate Justice Brett Kavanaugh.
Despite this, Alito wrote that the response to the Court's ruling was unknown at the time the case was decided, nor would it matter.
The dissent accused the majority of ignoring a woman's interest in making decisions about child bearing for herself.
"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," Breyer, Kagan and Sotomayor said.
"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," they added.
The dissent also claimed that the court's ruling jeopardizes other rights, such as the rights to contraception and same-sex marriage.
"They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions," the dissenting justices said.
PENCE SAYS THE 'SANCTITY OF LIFE' WILL SPARK ‘RENEWED ENTHUSIASM’ FOR REPUBLICANS IN MIDTERMS
A number of Republican-led states have already passed "trigger laws," in the event Roe was overturned, that would immediately restrict access to abortion.
Georgia, Iowa, Ohio and South Carolina all have laws banning abortions after the six-week mark, which have been ruled unconstitutional but would likely be revisited if Roe is overturned, the Guttmacher Institute, a pro-abortion research group, has reported.
On the other hand, pro-choice advocates will have to work to codify Roe or enact looser abortion restrictions by passing state-level legislation.
New York passed a bill in 2018 designed to codify Roe, and other blue states are expected to follow suit after the Supreme Court's ruling.
SUPREME COURT'S ROE V. WADE DECISION: READ THE DOBBS V. JACKSON WOMEN'S HEALTH RULING
Public opinion polling has also indicated that despite that more than six in 10 registered voters think the court should uphold Roe, the majority of Americans are in favor of some restrictions on abortion.
When Americans were asked in a recent Fox News poll about how they would feel if a law banning abortions after 15 weeks were passed in their state, just over half of voters favor it (54%) while 41% are opposed.
At the federal level, the Senate failed to advance a bill to codify federal abortion protections in Roe v. Wade in the week following the leaked draft.
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Vice President Kamala Harris presided over the vote on the Women’s Health Protection Act. It needed 60 votes to advance but died in a 51 to 49 tally, with West Virginia Democratic Sen. Joe Manchin joining with all 50 Republicans in voting no.
Democratic campaign arms have already signaled that abortion will be a key issue heading into the midterms and will galvanize their base. Republicans are largely convinced that "sanctity of life" issues will spark renewed enthusiasm for conservative candidates in state-level elections.
Alexandriai Gestapo Ocasio-Cortez Is Extremely Angry At Her Own Liberal Party On The Far Left For Not Being Communist Socialist Enough.
And Mrs. Gestapo Ocasio-Cortez Is Ordering Her Party To Put Planned Parenthood Abortion Clients At All Federal National Parks Across America.
