The Supreme Court has overturned Roe v. Wade, declaring it “egregiously wrong from the start,” rendering abortion illegal or severely restricted in roughly half the country. The majority opinion is by Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts wrote a separate opinion arguing the Court could have ruled more narrowly but agreed with the outcome. The three Democratic appointees dissented.
“We hold that Roe and Casey must be overruled,” Alito writes in Dobbs v. Jackson Women’s Health Organization. “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 Fourteenth Amendment.” Instead, he says the six justices, all appointed by Republican presidents, will “return the issue of abortion to the people’s elected representatives.” In their dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan declared that the ruling “says that from the very moment of fertilization, a woman has no rights to speak of.”
According to the Guttmacher Institute, 16 states are now “certain or likely” to ban abortion. In 13 states, this is expected to be automatic, through “trigger bans” designed to ban nearly all abortions if Roe were overturned. In Oklahoma, such a ban is already being observed; since last September, the Supreme Court has allowed Texas to ban most abortions, starting at around six weeks. Many of these states border one another, creating vast deserts of reproductive freedom across the South and Midwest, where, at minimum, providers will be criminalized and anyone who can become pregnant will be instantly stripped of their rights. Blue states, mainly on the coasts, are already preparing to become abortion oases, while the decision sets up titanic battles in purple states, especially ones with divided state governments.
The dissenters warned that the sweeping impact of the decision would not end at state borders, and that nowhere in the United States would be safe from its reach. “Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest,” they write. “If that happens, ‘the views of [an individual State’s] citizens’ will not matter. The challenge for a woman will be to finance a trip not to ‘New York [or] California’ but to Toronto.”
“Whatever the exact scope of the coming laws,” they continue, “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
The majority opinion insisted that only abortion will be affected by its opinion today. But Justice Clarence Thomas wrote a separate opinion urging his colleagues to take what he argued is the logical next step — overturning all of the cases that rely on similar readings of the 14th Amendment as Roe, including decisions that currently protect the right to birth control, freedom from criminalization for sodomy, and to marry a person of the same sex. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he writes. And the dissenters were unconvinced, writing, “the Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives.”
The near-half-century of a national constitutional right to abortion was a product of a bygone bipartisan consensus. Roe v. Wade, decided by a 7–2 margin in 1972, was written by a Richard Nixon appointee, and at the time, support for abortion rights, while by no means universal, crossed party lines. Despite a growing Christian right mobilization against Roe, it was broadly and unexpectedly affirmed in 1992 when three more Republican appointees — Justices David Souter, Sandra Day O’Connor, and Anthony Kennedy — joined together at the eleventh hour to save Roe but allow far more state restrictions on the procedure. “Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed,” they wrote in Planned Parenthood v. Casey.
Roe, and a right to legal abortion, remains broadly popular in this country, despite an ever-cresting backlash against feminist gains. Today’s opinion represents the triumph of social conservatism and a legal movement crafted to achieve its ends, which has single-mindedly screened judicial recruits for anti-abortion orthodoxy. All three Casey authors are gone from the Court, with O’Connor’s Bush-appointed successor, Samuel Alito, having authored the draft opinion. The decision also reflects a promise kept by Donald Trump, who baldly declared during the 2016 presidential campaign that his justices would overturn Roe “automatically, in my opinion, because I am putting pro-life justices on the Court.” Kennedy, who voted to uphold abortion rights as recently as 2016, nonetheless gave Trump the opportunity two years later to make good on his promise by retiring and handing his seat to Brett Kavanaugh, so far a reliable anti-abortion vote.
The dissenters today are not too polite to point this out. “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”
In June 2020, Mississippi asked the Supreme Court to allow it to ban abortion at 15 weeks. The stated aim was to challenge a line Casey had sanctified and every lower court had repeatedly upheld: That states could not ban abortion before fetal viability, when theoretically a fetus could survive on its own, which states put at about 24 weeks. Nationally, the vast majority of abortions occur before 15 weeks, and Mississippi’s only abortion clinic only offered them until 16 weeks, so the law was designed as a Trojan horse — a seemingly reasonable compromise that would open the door to any pre-viability ban, including at the earliest point in pregnancy. It represented a feint from the so-called incrementalist strategy to ban abortion, with the hope of swaying the possibly unreliable (to conservatives) Chief Justice John Roberts, who had signaled he did not want to move too quickly to unravel precedents. Many states had unsuccessfully tried to get the Court to revisit the viability question before but had never been able to get the four votes from justices to even hear the case.
That fall, weeks before the election, Justice Ruth Bader Ginsburg died after multiple battles with cancer, and Trump swiftly appointed Justice Amy Coney Barrett, a darling of the far right. In May 2021, the Court agreed to hear Mississippi’s ban, and the state decided to go for broke. Calling Roe and Casey “egregiously wrong,” in words Alito’s opinion would later echo, Mississippi’s attorneys wrote in a new petition, “So the question becomes whether this Court should overrule those decisions. It should.” (In his concurrence, Roberts notes this shift with disapproval.)
The Court heard oral arguments in the case in December 2021, and even long-coy conservatives sounded eager to fulfill the wildest dreams of the legal and religious right. Only Roberts seemed desperate to find an apparent compromise. The three remaining Democratic appointees sounded angrier, and blunter, than ever. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor demanded.
The decision would have always been a bombshell, but it took on a dimension of unexpected palace intrigue in early May. Politico published an unprecedented leak from the Court, including the full text of a draft, dated February, written by Alito to wholly overturn Roe v. Wade and reportedly bearing five votes. The Court confirmed the draft’s authenticity, and an investigation into the origin of the leak is under way.