Mon | Dec 4, 2023

Supreme Court overturns Roe v. Wade; states can ban abortion

Published:Saturday | June 25, 2022 | 12:07 AM
An abortion-rights protester with tape over their mouth that reads “2nd Class Citizen” demonstrates following Supreme Court’s decision to overturn Roe v. Wade outside the Supreme Court in Washington, Friday, June 24.
An abortion-rights protester with tape over their mouth that reads “2nd Class Citizen” demonstrates following Supreme Court’s decision to overturn Roe v. Wade outside the Supreme Court in Washington, Friday, June 24.


The Supreme Court has ended the nation’s constitutional protections for abortion 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 abortion bans in roughly half the states.

The decision, unthinkable just a few years ago, was the culmination of decades of efforts by abortion opponents, made possible by an emboldened right side of the court that has been fortified by three appointees of former President Donald Trump.

Both sides predicted the fight over abortion would continue, in state capitals and in Washington, and Justice Clarence Thomas, part of Friday’s majority, called on the court to overturn other high court rulings protecting same-sex marriage, gay sex and the use of contraceptives.

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.

It puts the court at odds with a majority of Americans who favoured preserving Roe, according to opinion polls.


Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion, were wrong the days they were decided and must be overturned.

“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” Alito wrote in an opinion that was very similar to the leaked draft.

Authority to regulate abortion rests with the political branches, not the courts, Alito wrote.

Joining Alito in the 5-3 vote were Thomas and Justices Neil Gorsuch, Brett Kavanaugh, 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 abortion right, noting that he would have done no more than uphold the Mississippi law at the heart of the case, a ban on abortion after 15 weeks. He wrote that there was no need to overturn the broad abortion precedents to rule in Mississippi’s favour.

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, warning that abortion opponents now could pursue a nationwide ban “from the moment of conception and without exceptions for rape or incest”.

The ruling is expected to disproportionately affect minority women who already face limited access to healthcare, according to statistics analysed by AP.

Mississippi’s only abortion clinic, which is at the centre of the case, continued to see patients Friday. Outside, men used a bullhorn to tell people inside the clinic that they would burn in hell. Clinic escorts wearing colourful vests used large stereo speakers to blast Tom Petty’s I Won’t Back Down at the protesters.

Mississippi is one of 13 states, mainly in the South and Midwest, that already have laws on the books that ban abortion in the event Roe is overturned. Another half-dozen states have near-total bans or prohibitions after six weeks of pregnancy, before many women know they are pregnant.

In roughly a half-dozen other states, the fight will be over dormant abortion bans that were enacted before Roe was decided in 1973 or new proposals to sharply limit when abortions can be performed, according to the Guttmacher Institute, a research group that supports abortion rights.

In Wisconsin, which has an 1849 abortion ban on the books, Planned Parenthood immediately halted all scheduled abortions at its clinics in Madison and Milwaukee following the high court’s ruling.

More than 90 per cent of abortions take place in the first 13 weeks of pregnancy, and more than half are now done with pills, not surgery, according to data compiled by Guttmacher.

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 abortion entirely to the states. Polls conducted by AP-NORC Center for Public Affairs Research and others also have consistently shown about one in 10 Americans want abortion to be illegal in all cases. A majority are in favour of abortion being legal in all or most circumstances, but polls indicate many also support restrictions, especially later in pregnancy.

The Biden administration and other defenders of abortion rights have warned that a decision overturning Roe also would threaten other high court decisions in favour of gay rights and, even potentially, contraception.

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, from contraception to same-sex intimacy and marriage. And, finally, it undermines the court’s legitimacy”.

And Thomas, the member of the court most open to jettisoning prior decisions, wrote a separate opinion in which he explicitly called on his colleagues to put the Supreme Court’s same-sex marriage, gay sex, and even contraception cases, on the table.