The iconic 1973 US Supreme Court ruling known as Roe v. Wade which cleared the way for decriminalizing abortion has been overturned Friday when deciding on a Mississippi law banning the interruption of pregnancies after 15 weeks, thus ending alleged constitutional protections that had been in place for nearly half a century.
Jane Roe was a pseudonym for Norma McCorvey, an unwed woman who in 1969 challenged Dallas District Attorney Henry Wade as he sought to enforce state legislation making it a crime to stop a pregnancy.
Friday's Supreme Court ruling overturned Roe v. Wade, effectively giving individual states the authority to decide on the matter by allowing it, limiting it, or banning it altogether.
The new decision was delivered in Dobbs v. Jackson Women’s Health Organization, a case focused 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, wrote Justice Samuel Alito in an opinion very much resembling one that had been leaked to the media in May.
As a young lawyer in the 1980s, Alito said after joining then-President Ronald Reagan's administration that he looked forward to one day arguing against Roe. His 79-page opinion stressed that nothing in the language or history of the Constitution suggested it could be used to void state bans on abortion. “Roe was on a collision course with the Constitution from the day it was decided,” he wrote. The right to abortion has never “been part of this nation’s tradition.”
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’s conservative majority found that the Constitution does not protect the right of women to choose abortion, leaving these decisions in the hands of state lawmakers instead.
“We hold that Roe and [the 1992 Planned Parenthood vs.] Casey must be overruled,” Alito wrote. “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 14th Amendment.” The opinion was joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.
Chief Justice John G. Roberts Jr. concurred but did not join the majority opinion in overturning Roe, saying he would have upheld only a Mississippi 15-week ban on abortion, which rendered the decision to uphold Mississippi’s law a 6-3 opinion. “The court’s decision to overrule Roe and Casey is a serious jolt to the legal system,” Roberts wrote.
The court’s dissenting liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued that based on Friday's verdict, from the very moment of fertilization ... a state can force [a woman] to bring a pregnancy to term, even at the steepest personal and familial costs.”
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and their status as free and equal citizens,” they stressed.
The new ruling is expected to spark nationwide state-by-state debates on the issue of abortion. Women will still have the right, provided the State they live in recognizes it. And then there is also inter-State traveling, which would nevertheless make the logistics of accessing abortion more complicated, with at least 26 states set to ban the procedure. The abortion debate is also expected to play a key role in this year's midterm elections. “May a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel,” Justice Kavanaugh said. “May a state retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no.” In a separate concurring opinion, Justice Thomas said the court should in the future review other decisions that created rights not spelled out in the Constitution.
“This fall Roe is on the ballot,” the pro-choice Catholic President Joseph Biden said, as he called on Congress to restore the women's right to abortion through federal legislation. “The health and life of women in this nation are now at risk,” he added.
House Speaker Nancy Pelosi (D-San Francisco) said the court’s decision was a slap in the face to women about using their judgment to make their own decision about their reproductive freedom.”
On the other hand, Conservatives pledged to push for abortion bans in every state or antiabortion legislation at the federal level, particularly if they make gains in Congress in November’s elections. Former Vice President Mike Pence said social conservatives in the post-Roe era “must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.”
Many legal conservatives say the constitutional right to abortion had been built on shaky legal grounds. The late Ruth Bader Ginsburg, a champion of women’s rights, had said Roe had gone too far too fast.
With the help of Senate Republican leader Mitch McConnell, President Donald Trump appointed three new justices who made the difference. The death of Ginsburg in September 2020 cleared the way for McConnell and his Republican majority to confirm Justice Coney Barrett a week before Trump was defeated in the November election. Her vote proved crucial to the outcome.
McCorvey died in 2017 after becoming an evangelical Christian who for decades advocated against abortion. Later in her life, she underwent another religious conversion and became a Roman Catholic. I'm 100 percent pro-life. I don't believe in abortion even in an extreme situation. If the woman is impregnated by a rapist, it's still a child. You're not to act as your own God,” she told The Associated Press in 1998.
After the resounding case, McCorvey lived quietly for several years before coming out as Jane Roe in the 1980s. She also confessed to lying when she said the pregnancy was the result of rape. Throughout the 1980s and into the 1990s, she remained an ardent supporter of abortion rights and worked for a time at a Dallas women's clinic where abortions were performed.
At the time of the Roe v. Wade ruling, McCorney's child had been born and given up for adoption.