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The Supreme Court’s Argument For Overturning Roe v. Wade

The Supreme Court just overturned one of the most famous and controversial rulings in modern history. A five-justice majority of Republican appointees ruled that Roe v. Wade and a following case, Planned Parenthood v. Casey, were wrongly decided. It’s a political earthquake — one that will reverberate for months and years to come, reshaping American lives in ways that are easy and not so easy to predict.

Now, according to the Supreme Court, there is no constitutional right to abortion. Over the protests of Chief Justice John Roberts, who voted to uphold Mississippi’s 15-week abortion ban but not to overturn Roe, the status quo of the past 49 years is gone. (The three liberal justices dissented in full.) That shift will cause an immediate change in many Americans’ lives. As of 11 a.m. Eastern on Friday, abortion is already almost completely illegal in at least four states. By the end of July, it will be almost completely illegal in at least another nine. And the fight over how far abortion rights should stretch or shrink will flare up in many states, surely shaping some of this year’s most important midterm races.

What overturning Roe means for abortion access across the US | FiveThirtyEight

We will have plenty of coverage of the aftershocks in the coming days, and our colleagues at ABC News have already begun their round-the-clock coverage. But before we focus on the aftermath of the decision, it’s worth dwelling on the decision itself. Friday’s ruling is a manifestation of the devotion to constitutional history that the court’s conservatives have become known for, and it’s packed with hints about what could be in store for the future of abortion and other legal precedents.

What the ruling said

At its heart, Roe v. Wade was about how much states could restrict abortion. In that ruling, states were prohibited from banning abortion in the first trimester of pregnancy and their ability to regulate abortion was limited during the second trimester. That structure changed with Planned Parenthood v. Casey, a Supreme Court case decided in 1992, which replaced the trimester framework with a single dividing line: fetal viability. Even with that change, Americans had a constitutional right to abortion up to a certain point in pregnancy for almost 50 years. 

In his majority opinion, Justice Samuel Alito, a Republican appointee, explained that this right simply never existed. “Abortion presents a profound moral question,” he wrote. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Roe, he wrote, wasn’t simply wrong — it was so wrong as to amount to an “abuse of judicial authority.”

This week’s ruling — officially known as Dobbs v. Jackson Women’s Health — relied heavily on a historical view of abortion rights. Alito argued that approach is crucial for understanding why abortion couldn’t be constitutionally protected. “Until the latter part of the 20th century, such a right was entirely unknown in American law,” he wrote. “Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.” Some historians have argued that Alito’s view of this history — which was also laid out in a draft opinion that leaked in early May — isn’t complete. But it’s worth emphasizing because another major opinion released yesterday, overturning a concealed-carry law in New York, also relies heavily on history.

Alito acknowledged that a major precedent was being overturned, but he argued that it had to be done because the justices who decided Casey actually made a mistake by relying too heavily on precedent. The court is not required to uphold a previous ruling simply because it’s already on the books, he wrote. In fact, “the Constitution and the rule of law demand” that the question of abortion be returned to the states.

The ruling is likely to be unpopular. Alito addressed that too: “We cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” That was another place, he argued, where the justices who decided Casey got it wrong. In that ruling, the majority explicitly noted that overturning Roe would be politically seismic and could undermine the court’s authority. 

Now, Alito and the other four justices who signed onto his opinion are risking just that.

Supreme Court overturns Roe v. Wade | FiveThirtyEight Politics Podcast

What the ruling means for the future

Most Supreme Court decisions rule on the case at hand while also dropping hints about how the Supreme Court might rule on the same topic in the future. This one is no different. In his majority opinion, Alito included several caveats about what the ruling in Dobbs could mean for other precedents that relied on the same judicial framework as Roe. But concurring opinions by Justices Clarence Thomas and Brett Kavanaugh suggest that there could be some disagreement among the conservative justices about what should happen next.

Kavanaugh, for his part, took pains to stress what the opinion didn’t say. The Constitution, he wrote, is “neutral” on the issue of abortion. Roe was a mistake, he said, because it took the power to decide whether abortion should be legal from the democratically elected branches of government. But that doesn’t mean it’s illegal everywhere, either. “The Court’s decision today does not outlaw abortion throughout the United States,” he wrote. He added that just as the court doesn’t have the authority to say that abortion is a constitutional right, it also doesn’t have the power to “declare a constitutional prohibition of abortion.” Kavanaugh also signaled how he, at least, is thinking about other legal questions that could come up in Dobbs’s wake, including whether states can bar their residents from traveling to another state to obtain an abortion. (His view: No, under the constitutional right to interstate travel.)

Kavanaugh is clearly trying to head off concerns that the court will outlaw abortion, but in Thomas’s concurring opinion, he signaled that he would like to use the ruling in Dobbs as an opportunity to reconsider other constitutional rights. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, referring to rulings that, respectively established constitutional rights to contraception; to engage in intimate, consensual sexual conduct; and to same-sex marriage. This could persuade advocates to bring cases challenging those precedents in the future.

Alito, for his part, clearly wanted to head off speculation about what would happen to these precedents, which the three liberal dissenters warned could now be in danger. The court’s other conservative justices are not necessarily champing at the bit to reconsider these precedents. But the question is in the air — and seems likely to come up again in the future.

Roberts, for his part, did not want to overturn Roe. In his concurring opinion, he bemoaned the broad scope of the court’s new abortion ruling. He agreed with the decision to uphold Mississippi’s ban on abortion after 15 weeks, but he questioned why it was necessary to go further. The viability line established in Casey was “misguided,” he said, but he also argued that his conservative colleagues were violating the principle of judicial restraint by overturning Roe and Casey entirely. “The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases,” he wrote.

Roberts was essentially asking his conservative colleagues to slow their roll. The liberal justices, writing in dissent, warned that the swift action in Dobbs will have serious consequences. The decision, they wrote, “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.”

The fact that the chief justice couldn’t convince the other Republican appointees to slow down is its own signal about where the court is going. Once the most high-profile precedent in two generations has been overturned, what might the conservative bloc be interested in changing next?

Supreme Court overturns Roe v. Wade | FiveThirtyEight Politics Podcast

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.


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