A divided Supreme Court overturned the constitutional right to an abortion Friday, in a landmark opinion that reverses the decision in Roe v. Wade that first established that right nearly 50 years ago.
The decision from justices on the conservative wing of the court upheld a Mississippi law that bans abortions after 15 weeks of pregnancy, and signaled a change to decades of the Supreme Court’s approach to constitutional rights.
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote for the majority.
The opinion will reverberate through health care, politics and culture across the United States, with estimates that as many as 36 million women of reproductive age will live in up to 26 states that are certain or likely to effectively outlaw all abortions.
Three justices on the court’s liberal wing, in a dissent, warned that the decision would allow states to ban abortion from the moment of fertilization, and mean “other constitutional rights are at risk,” including same-sex marriage and contraception.
Chief Justice John G. Roberts Jr., wary of the sweeping nature of the opinion, voted to uphold the Mississippi law but did not sign on to the broader part of the opinion that wiped out the right to an abortion.
Roberts authored a concurring opinion that criticized the scope of the majority opinion. The chief justice said he would have gotten rid of a standard from Roe that stopped states from banning abortions before viability— the issue in the challenge to the Mississippi law in this case.
Getting rid of the viability standard from Roe but keeping the right to abortion in place would be “markedly less unsettling” than the opinion issued Friday that caused a “serious jolt to the legal system,” Roberts wrote.
Divided court
Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor dissented from the decision, arguing that it would create chaos across the country and undermined numerous other constitutional rights that Americans take for granted.
“In overruling Roe and Casey, this Court betrays its guiding principles,” the dissent said. “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
The majority opinion criticized the Roe decision and argued that the right to an abortion had no historical precedent — an assertion historians have disputed. Alito wrote that the decision “enflamed debate and deepened division” over one of the most divisive issues in the nation.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote.
The majority opinion also argued for a more restrictive reading of due process rights protected by the 14th Amendment to the Constitution, namely excluding those not explicitly mentioned elsewhere in the Constitution.
Alito wrote that “we must guard against the natural human tendency to confuse what [the 14th Amendment] protects with our own ardent views about the liberty that Americans should enjoy.”
Justice Clarence Thomas, in a separate concurring opinion, called for the court to reconsider other due process rights, including same-sex relationships, same-sex marriage and access to contraception.
Other rights
The dissent argued that “no one should be confident that this majority is done with its work” on substantive due process, since the reasoning the majority used in the opinion could apply to those rights mentioned by Thomas.
“So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure,” the dissent states. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat.”
Alito, in the majority, countered that. “And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
With the release of Friday’s opinion, a patchwork of abortion bans and restrictions across the country may go back into effect, according to the Guttmacher Institute.
Several states, such as Michigan, Wisconsin, West Virgina and Arizona, have abortion bans that predate the Roe decision. Others, such as Louisiana, Tennessee and Kentucky, have so-called “trigger laws” that go into effect now that Roe has been overturned.
Still more, like Georgia, Ohio and South Carolina, have bans on abortions after six weeks of pregnancy.
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