The Supreme Court erases the constitutional right to abortion

Nearly a half-century after five Republican-appointed justices joined two Democratic appointees to recognise a woman’s right to abortion, a different quintet of gop-tapped justices has voted to eliminate it. On June 24th the Supreme Court renounced Roe v Wade, the 1973 case that legalised abortion nationwide, and Planned Parenthood v Casey, the decision that extended it (with modifications) in 1992. The vote was 6-3, with all but Chief Justice John Roberts voting to scrap Roe. The Supreme Court has never before withdrawn a constitutional right that so many Americans have relied upon for so long.

Dobbs v Jackson Women’s Health Organisation, the watershed case marking the end of Roe and Casey, began as a run-of-the-mill challenge to a run-of-the-mill abortion law in Mississippi. Next to draconian bans passed in 2019 in neighbouring Georgia and Alabama, Mississippi’s hb1510, enacted a year earlier, was comparatively moderate. It prohibited abortion at 15 weeks of pregnancy, with exceptions only for medical emergencies or severe fetal abnormalities. A federal district court promptly blocked hb1510 as unconstitutional and the highly conservative Fifth Circuit Court of Appeals agreed.

These courts had little choice: under Roe and Casey, abortion could be regulated, but not banned, prior to fetal viability—the point at about 23 or 24 weeks when a fetus can survive outside the womb. But in a concurring opinion at the appeals court, Judge James Ho, an appointee of Donald Trump, argued that abortion is the “immoral, tragic and violent taking of innocent human life” and encouraged the Supreme Court to rethink its precedents. Thanks to three new justices seated by Mr Trump, the court has done just that. Mr Trump’s pledge in the 2016 presidential campaign—that Roe would “automatically” disappear if he had a chance to reshape the Supreme Court—has been fulfilled.

A strong hint Dobbs would end up this way arrived on the evening of May 2nd, when a draft majority opinion by Justice Samuel Alito was leaked to Politico, a political news site. The draft, like the official ruling just handed down, blasted the jurisprudential underpinnings of a right to abortion and so called into question the wisdom of the 17 justices who signed Roe or voted to uphold it in ensuing decades. The unprecedented leak put Americans on notice that Roe might soon be finished—as long as Justice Alito held onto his five-justice majority.

The majority held. Justice Alito’s opinion calls Roe “egregiously wrong” and lambasts the notion that abortion was ever thought to be a “fundamental constitutional right” protected under the 14th Amendment. Before 1973, he writes, most states banned abortion. The right cannot be said to be “deeply rooted” in America’s “history and traditions”, so the fraught moral question should be handled by legislators representing the people of the fifty states, not settled for all by nine justices.

Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas signed Justice Alito’s majority opinion. Justice Kavanaugh’s concurrence emphasised what he saw as the constitution’s “neutral” perspective on abortion: “neither pro-life”, he wrote, “nor pro-choice”.

Justice Thomas’s concurrence made a more radical argument still: against all decisions that ground rights in the 14th Amendment’s due-process clause. The court “should reconsider all of this court’s substantive due process precedents”, he wrote, “including Griswold, Lawrence and Obergefell”—decisions that protect the rights to contraception, sexual intimacy and marriage equality for gays and lesbians, respectively.

Although he agreed that Mississippi’s 15-week ban should be upheld, Chief Justice John Roberts refused to join Justice Alito’s opinion dispensing with Roe entirely. States should be able to ban abortion at some point before viability, Chief Justice Roberts wrote, but overruling Roe represents “a serious jolt to the legal system” and an unnecessarily “dramatic step”.

The court’s three liberals were scathing—and despairing—in their dissent. In a rare jointly authored dissenting opinion, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor condemned the majority for discarding the “balance” the court had struck for five decades, between a woman’s right to end a pregnancy and states’ legitimate interest in protecting fetal life. In their view the five justices who voted to scrap Roe have thereby announced that “from the very moment of fertilisation, a woman has no rights to speak of”. Assurances from the majority that it is simply turning the matter over to state legislatures are “cold comfort”, the liberal trio wrote, “for the poor woman who cannot get the money to fly to a distant state for a procedure”. More than anyone else, “women lacking financial resources will suffer from today’s decision”. To the dissenters, the moral arc of justice has bent the wrong way. “After today,” they wrote, “young women will come of age with fewer rights than their mothers and grandmothers had.”

The legal fallout of Dobbs will come into full view only with time. Will other rights protected via the due-process clause come under threat, as Justice Thomas suggests they should? Will courts allow states to prohibit purportedly “abortifacient” birth-control methods such as the IUD or the morning-after pill? The court’s majority opinion says it pertains to abortion rights alone. But the basis for its rejection of Roe is the same as that justices have used to defend anti-sodomy laws and oppose marriage equality.

The practical significance of Dobbs for abortion access will swiftly be felt by women in several states. Trigger laws banning termination will tick into effect in 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. Bans are likely to follow in others. As America transforms into a patchwork of abortion rights, efforts to widen access for women in states hostile to abortion will grow. Abortion medications sent by post will get a boost, too, as a workaround for shuttered clinics.

Calls to codify abortion rights—as President Joe Biden did soon after Dobbs was released—will grow. In May, Democrats in the Senate tried to pre-empt a reversal of Roe with the Women’s Health Protection Act, a bill barring most abortion limits. It had passed the House last September, but failed in the Senate, 11 votes short of the 60 needed to avoid a filibuster.

The Supreme Court has once before reversed course on a constitutional right that comes close to the magnitude of Roe: in 1937 it turned away from the right of corporations to draw up employment contracts without government intervention—an interpretation of the 14th Amendment that, for some time, undermined legislation aimed at protecting workers. That year West Coast Hotel v Parrish upheld a minimum wage law, thwarting Franklin Roosevelt’s plan to pack the court with justices sympathetic to his policies. By contrast, Dobbs seems bound to deepen a growing legitimacy crisis at the Supreme Court. The institution’s popularity among Americans, a poll conducted by Gallup showed this week, has reached an all-time low.■