Courts

Supreme Court Knocks Down Roe v. Wade

The U.S. Supreme Court.
The U.S. Supreme Court. Jarek Tuszyñski/Wikipedia Commons

The U.S. Supreme Court on Friday released its long-anticipated decision knocking down a woman’s right to abortion under federal law and leaving access to abortion to state legislatures. As a result, at least 26 states, including Arizona, will see more restrictive abortion laws or will abolish the right altogether. 


The opinion, Dobbs v. Jackson Women’s Health Organization, was over a 2018 Mississippi state law that sought to limit abortion availability to 15 weeks, in defiance of the 1973 landmark decision, Roe v. Wade.

Roe
allowed abortions up to the moment of "viability," the point where the fetus could survive outside the womb, thought to be about 24 weeks. Federal abortion law was altered somewhat in a subsequent decision called Planned Parenthood v. Casey in 1992.


The new Dobbs opinion does not stop at upholding the Mississippi law, however. By a 6-3 majority, the justices, three of them appointed by former President Donald Trump, chose to overturn Roe completely.

The opinion, authored by Justice Samuel Alito, a longtime abortion foe, was leaked to Politico in May.

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U.S. Supreme Court Justice Samuel Alito.
Chip Somodevilla/Getty Images

Alito characterizes the decision as response to a groundswell, the recent rush by conservatives states to enact anti-abortion legislation expressly to challenge Roe.

“[Twenty-six] states expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives,” Alito wrote.

Except for Texas, they are mostly states with smaller populations in the South and rural Midwest, plus Utah and Arizona. The Arizona statute, signed into law by Governor Doug Ducey on March 30, also limits abortion to 15 weeks, but like the Mississippi statute, it could not go into effect because of Roe.


Alito posited in his opinion that there was no tradition or history of abortion in American law to justify it as constitutional. In fact, he wrote, historically, it was usually considered a crime.  As summarized in the case syllabus, insisting that abortion is legal, “at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”

Justices Clarence Thomas, Brett Kavanaugh and John Roberts wrote separate concurring opinions. Justices Neil Gorsuch and Amy Comey Barrett voted with the majority as well without offering written opinions.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, first recalling how Roe had tried to strike a balance between the “potential life” and the woman carrying it.

“Today, the Court discards that balance,” they wrote. “It says that from the very moment of fertilization, a woman has no rights to speak of.”

This term, the conservative-Republican long game of stacking the courts with like-minded judges, has paid off. Many of the gains have been incremental. Just this week, the court made it harder to sue law enforcement agencies after they fail to provide Miranda rights, made it harder to restrict gun licenses, and made it easier for Republican state legislatures to intervene in court cases regarding restrictive voting laws. The court approved giving state school vouchers to religious schools but knocked down COVID-19 vaccine and mask mandates for corporations and health care workers.


Yet to come are opinions on school prayer, how much the Environmental Protection Agency can regulate carbon emissions, and whether immigrants have to “Remain in Mexico” pending asylum decisions.

But overturning a 50-year-old opinion legalizing abortion is the term’s crown jewel.

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The fine art of the uterus.
Lynn Trimble

Roe v. Wade was issued in January, 1973, by a 7-2 vote of the court. It came after years of challenges to the nation’s strict state abortion laws, many of them dating to the mid-19th century. “Abortion on demand” was available in just three states, and the rest either banned it altogether or limited it to instances where the woman’s life or health were threatened.


Roe set out a three-part “trimester” schedule for abortion. During the first trimester, or 12 weeks of pregnancy, abortion would be relatively unregulated. During the second trimester, leading up to fetus viability, the states could put limited restrictions on the procedure, and after that, abortion would be unavailable except in cases threatening the woman’s health.

The concept of viability was introduced to the court by a young lawyer named Larry Hammond, who was a clerk to Justice Lewis Powell.  Hammond had been inspired by a lower court decision from a federal judge in Connecticut regarding abortion and referenced that judge’s clerk, Andrew Hurwitz. Hammond, who died in 2020, went on to be a Watergate prosecutor, then a prominent Phoenix defense attorney. Hurwitz also  served on the Arizona Supreme Court, and is currently a judge on the 9th U.S. Circuit Court of Appeals.


Roe was mostly upheld in 1992, in Planned Parenthood v. Casey, co-authored by Justice Sandra Day O’Connor, an Arizonan (with still another Arizonan, Justice William Rehnquist, dissenting). That decision threw out the trimester concept and allowed further conditions to be applied to abortion access, such as waiting periods and informed consent, while upholding the concept of viability and refusing to overturn Roe altogether.

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'Nuf said.
Lynn Trimble


At that time, Alito was a dissenting judge on the federal Circuit Court of Appeals that passed the Planned Parenthood opinion on to the Supreme Court. As the author of Dobbs, he got to avenge that opinion.


Now abortion availability will be decided by state legislatures. As Alito pointed out, 26 Republican-controlled legislatures have recently passed more restrictive laws as a direct challenge to Roe. With Dobbs, the question remains as to whether those states will stick with the recently passed laws or will return to the more restrictive statutes that preceded Roe.

And that is the case with Arizona. There undoubtedly will be battles over whether the state abides by the 15-week ban signed into law by Ducey earlier this year or will return to the 1864 territorial law that is still on the books but was preempted by Roe.

In Dobbs, the court declares that there is no constitutional right to abortion. The Roe court agreed that no such right was spelled out. But the majority of the 1973 justices pondered why they should afford greater rights to an unborn fetus than to the woman carrying it. They also acknowledged that there was a difference of opinion as to when life begins and it was unfair to take one side over another in what is largely a religious decision. That is why they tried to arrive at a compromise between the woman’s right to choose and the fetus’ right to life. Furthermore, they felt that the choice was a private matter protected by the Due Process Clause of the 14th Amendment.

That point was not lost to the dissent in Dobbs, which noted that “a state can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the court has often stated, protecting fetal life is rational, states will feel free to enact all manner of restrictions.”

That includes restrictions against abortion using pills in one’s own home or for women who were victims of incest of rape, or whose babies suffer severe abnormalities, the dissenting justices wrote.

But even the justices in the majority were not in total agreement with the final opinion.

Kavanaugh agreed that abortion was not guaranteed by the Constitution but that the court should remain neutral, neither legalizing nor outlawing abortion.

Roberts stated that the court could have upheld the 15-week Mississippi law without overruling Roe.

“The court’s opinion is thoughtful and thorough,” he wrote “but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”

Thomas, on the other hand, felt that there was more reckoning to be done regarding “due process” arguments. He wrote that other cases should also be considered, singling out Griswold v Connecticut, which allowed married couples to legally purchase contraceptives; Lawrence v. Texas, which ruled that gays could not be prosecuted for “sodomy;" and Obergefell v Hodges, which legalized same-sex marriage.

Alito was unmoved by the dissent, responding to it heatedly over the course of his opinion. Due process doesn’t apply, he wrote in his majority opinion, because unlike issues like contraception, sex among consenting adults and same-sex marriage, abortion “destroys potential life.”

Roe was on a collision course with the Constitution from the day it was decided,” he wrote, “and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people.”

Therefore, he reasons, the law should revert back to how it was before Roe.

Welcome back to the '70s. The 1870s.

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Michael Kiefer