by - The landmark 1973 case, Roe v. Wade, established the constitutional right to abortion in the US.
- The Supreme Court appears poised to overturn that decision, according to a leaked draft opinion.
- If it is overturned, the states and the federal government will be free to legislate abortion.
Abortion is a constitutionally protected right in the US and has been since 1973, but a leaked Supreme Court draft opinion last week suggests that could change soon.
If the court strikes down Roe, as it looks like it will, abortion will no longer be a federally protected right. This is what that means.
Before Roe vs. Wade
Before 1973, the right to abortion was not protected by the federal government. States were free to legislate abortion as they pleased, and at one time or another, most did. Laws varied from state to state, although most prohibited abortions.
Four states (New York, Washington, Alaska and Hawaii) have legalized abortion in almost all cases before the fetus is viable, around 24 weeks of pregnancy. Another 13 states allowed abortion in some circumstances. Almost all the others outlawed abortion, except to save the life of the pregnant woman.
Roe v. Wade: the case that established the constitutional right to abortion
In 1970, Norma McCorvey, a single pregnant Texas woman using the pseudonym “Jane Roe,” filed a lawsuit challenging the constitutionality of Texas abortion laws, which prohibited the procedure except for the purpose of saving the life of the woman. mother. The defendant in the case was Henry Wade, the Dallas County District Attorney.
The lawsuit alleged that Texas abortion laws violated their constitutionally protected right to privacy.
In 1973, the Supreme Court issued a 7-2 ruling in Roe’s favor that said the Constitution protected abortion rights before viability. The court cited the Due Process Clause of the 14th Amendment, which says: “No state shall deprive any person of life, liberty, or property, without due process of law.”
The court held that a person could choose to have an abortion before the fetus became viable, or could survive outside the womb, an estimated 24 weeks after conception.
The two dissenting justices criticized the majority opinion, arguing that it exceeded the judicial power of the court and took away power that belonged to state legislatures, arguments that still apply against Roe v. wade today.
“There are all levels of rights, and the highest level of rights is a constitutional right,” Doron Kalir, a professor at the Cleveland-Marshall Law School, told Insider. “When the right exists, neither Congress nor the state can challenge that right because it comes directly from the Supreme Court, which is the final arbiter of the Constitution.”
When the Supreme Court ruled on Roe, it established a constitutional right to abortion. He rendered existing state-level abortion bans invalid essentially overnight, and in the 49 years since, he has prevented states from issuing new bans.
In Planned Parenthood v. Casey in 1992, the Supreme Court again upheld the right to abortion prior to fetal viability.
Precedent: ‘Keep things decided’
Stare decisis, which means “to keep things decided” in Latin, is a legal doctrine that stipulates that courts will abide by precedent in making their decisions.
The Supreme Court has said that “stare decisis promotes the impartial, predictable, and consistent development of legal principles, fosters confidence in judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Despite the doctrine, the Supreme Court is not bound by precedent. But judges generally do, Kalir said, for a number of reasons, including tradition, consistency and public trust in the court.
“If every day the Supreme Court can overrule itself, then you don’t know what the law is,” he said, adding that breaking a precedent could also increase public perception of the Supreme Court as a political body rather than an interpreter. law neutral. the law.
“When the law changes, it doesn’t look like the Supreme Court. It looks like Congress,” she added.
There are well-known examples of the Supreme Court overturning precedent. For example, the 1896 decision in Plessy v. Ferguson, which allowed “separate but equal” segregation laws, was struck down by Brown v. Board of Education in 1954.
But overturning precedent is not something judges take lightly, and they typically do so incrementally rather than all at once, as might be the case here, the leaked draft opinion indicates.
How the Supreme Court could strike down the right to abortion
The draft opinion is for a Mississippi case, Dobbs v. Jackson Women’s Health Organization.
The state of Mississippi passed a law in 2018 that banned most abortions in the state after 15 weeks of pregnancy, with exceptions for a medical emergency or “a serious fetal abnormality.” Like Roe v. Wade protected the right to abortion up to 24 weeks, the law was challenged as unconstitutional.
Jackson Women’s Health Organization, the only abortion clinic in Mississippi, sued to block the law and named Thomas E. Dobbs, the Mississippi state health officer, in the case. After lower courts ruled in favor of the clinic, Mississippi appealed to the Supreme Court, which agreed to hear the case.
The draft opinion, published by Politico, showed that five justices voted to strike down Roe. The 98-page opinion, written by Justice Samuel Alito, was unflinching in his criticism of the Roe v. Wade.
“Roe was terribly wrong from the start. His reasoning was exceptionally weak and the decision has had damaging consequences,” Alito wrote.
“We hold that Roe and Casey should be overruled,” he continued. “It is time to heed the Constitution and return the issue of abortion to the elected representatives of the people.”
Kalir said it is rare for judges to condemn an earlier court decision so strongly, especially one with 50 years of precedent. “Never before has the court annulled itself in such an outrageous tone and in such a contemptuous manner,” he said.
Alito argued that asserting that the right to abortion was protected under the concept of “liberty” in the 14th Amendment to the Constitution, as the justices did in 1973, was wrong.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which Roe and Casey advocates now primarily rely: the Due Process Clause of the Fourteenth Amendment,” Alito wrote, adding that abortion rights were not part of US history.
What happens next?
The leaked opinion is not final and may change before the final ruling is released this summer, though it seems likely that Roe v. Wade is annulled.
If so, laws like Mississippi’s can be defended, including other state abortion laws that are being challenged in court. There are also 13 states with “trigger laws” that ban or restrict abortions. These laws are designed to go into effect when Roe falls.
States and the federal government would be free to legislate abortion.
Some Republican lawmakers have floated the idea of a federal abortion ban, while Democrats in Congress will vote this week on a bill that would protect abortion rights, though it will almost certainly fail.
