WASHINGTON — The Supreme Court on Friday overturned the landmark Roe v. Wade ruling that guaranteed a constitutional right to abortion, a momentous break from a half-century of rulings on one of the nation’s most contentious issues. About half the states have already indicated they would move to ban the procedure.
The court ruled 6-3 to uphold a Mississippi abortion ban being challenged in the case and 5-4 to overturn Roe. In the majority opinion, Justice Samuel Alito wrote that the court’s decision in Roe “sparked a national controversy that has embittered our political culture for a half century.”
Legal scholars said the decision to overrule Roe is one of the few times the Supreme Court has ever invalidated an earlier decision that declared a constitutional right — and the only time it took away a right that had considerable public support.
The ruling came in a dispute over a 2018 law passed by Mississippi’s Republican-controlled Legislature that banned abortions after 15 weeks. The law, which made exceptions for medical emergencies or cases of severe fetal abnormality but not for rape or incest, was immediately challenged and put on hold by lower courts.
The law constituted a direct attack on the court’s landmark 1973 Roe v. Wade decision as well as a follow-on ruling in 1992, Planned Parenthood v. Casey, under which states could impose some restrictions on abortion before viability, provided they did not constitute an “undue burden” on the right of access to the procedure. But flat-out bans before viability, generally considered to be about 24 weeks into a pregnancy, were deemed to be unconstitutional.
Those rulings are no longer the law of the land, in part because of the court’s changed composition. Two members of the court who joined in its earlier abortion decisions, Ruth Bader Ginsburg and Anthony Kennedy, were succeeded by justices appointed by then-President Donald Trump: Amy Coney Barrett and Brett Kavanaugh. Trump had declared that he would put “pro-life justices on the court.”
“We hold that Roe and Casey must be overruled,” Alito wrote in the opinion, which was backed by Justices Clarence Thomas, Neil Gorsuch (also appointed by Trump), Kavanaugh and Barrett. “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.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he wrote, calling the original Roe decision “egregiously wrong and deeply damaging.”
In a concurring opinion, Kavanaugh noted that states retained the power to limit or grant the right to an abortion.
“After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue,” he wrote.
Thomas, meanwhile, called on the court to revisit other decisions, including on contraception and same-sex marriage, in his opinion agreeing with the majority ruling. He wrote that he would do away with the doctrine of “substantive due process” and explicitly called on the court to overrule the rulings in Griswold v. Connecticut, on the right to contraception; Lawrence v. Texas, on the right to same-sex intimacy; and Obergefell v. Hodges, on the right to same-sex marriage.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote.
Chief Justice John Roberts joined the other conservative justices in the decision to uphold the Mississippi law, but he urged in a concurring opinion against going further.
“Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis,” Roberts wrote.
In a furious dissent, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said the court “reverses course today for one reason and one reason only: because the composition of this Court has changed.”
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the justices added.
“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 concluded.
JUNE 24, 202203:13
Biden, lawmakers press for codifying Roe
The court’s ruling does not make abortion illegal, but with access to the procedure no longer deemed a constitutional right, states can now move to ban it.
Supporters of abortion rights were bracing for the loss after an early draft of the opinion was leaked in May, touching off several days of demonstrations in more than two dozen cities. Protesters even showed up outside the homes of some members of the court.
Alarmed by the prospect that Roe would be overturned, Democrats in Congress responded to the leak by holding a Senate vote to advance legislation that would guarantee access to abortion nationwide. The bill was blocked, however, in a largely party-line vote.
President Joe Biden said in remarks from the White House that Friday’s ruling was “a tragic error by the Supreme Court” that had put women’s health and lives “at risk.”
The president vowed to do what he could to keep abortion accessible, but he said the “only way we can secure a woman’s right to choose is for Congress to restore the protections of Roe v. Wade as federal law.” That can’t be accomplished without more Democrats in the House and Senate, Biden said, meaning, “This fall, Roe is on the ballot.”