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Supreme Court ruling leaves states free to outlaw abortion

The justices voted 6 to 3 to uphold a restrictive Mississippi law, but Chief Justice John Roberts criticized his conservative colleagues for taking the additional step of overturning Roe v. Wade

On June 24, the Supreme Court voted to overturn Roe v. Wade, leaving abortion decisions up to the states. Here’s what you need to know — and what comes next. (Video: Blair Guild/The Washington Post)
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The Supreme Court on Friday overturned the fundamental right to abortion established nearly 50 years ago in Roe v. Wade, a stunning ruling that could alter the nation’s political landscape and leaves states free to drastically reduce or even outlaw a procedure that abortion rights groups said is key to women’s equality and independence.

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Justice Samuel A. Alito Jr. wrote for the majority. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The vote was 6 to 3 to uphold a restrictive Mississippi law. But Chief Justice John G. Roberts Jr. did not join the opinion and criticized his conservative colleagues for taking the additional step of overturning Roe and Planned Parenthood v. Casey, a subsequent case decided in the early 1990s that reaffirmed the constitutional right to abortion.

Read the opinion and dissent: Dobbs v. Jackson Women’s Health Organization

The decision in Dobbs v. Jackson Women’s Health Organization was the most anticipated of the court’s term, with political tension surrounding the fight over abortion rights erupting in May with the leak of a draft opinion indicating a majority of justices intended to end the long-standing precedent. That the court delivered such a result was a long-sought triumph for conservatives, who celebrated Friday’s outcome as liberals mourned the sweeping rollback of rights.

Speaking from the White House, President Biden called the decision a “tragic error” and urged voters to turn out in November to elect lawmakers willing to enact abortion protections.

“This is a sad day for the country in my view, but it doesn’t mean the fight is over,” he said.

The justices were considering a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy. The law had not taken effect because lower courts said it was at odds with the national right to abortion established via Roe in 1973.

Hundreds gathered outside the Supreme Court Friday as the Supreme Court's decision overturning Roe v Wade was announced. (Video: Jorge Ribas, Hadley Green, Erin Patrick O'Connor/The Washington Post, Photo: Matt McClain/The Washington Post)

The decision was an extraordinary victory for the conservative legal movement, which for decades has made overturning Roe its highest priority and had been frustrated in previous trips to the Supreme Court. The decision came from a court more conservative than the nation has seen in decades, bolstered by three justices nominated by President Donald Trump whose vice president, Mike Pence, called Friday for a nationwide ban on abortion.

It was a worst-case scenario for abortion rights supporters, who had comforted themselves in the past with the notion that while abortion might be restricted, the fundamental right would never be erased. The right will now be decided by state legislatures, as it had until Roe was decided, and could lead to the procedure being banned in more than half of all states.

The decision sets in motion “trigger laws” in 13 states that will ban abortion within 30 days and other antiabortion legislation that will severely limit access. Republican officials in some states moved quickly to sign orders implementing the bans immediately, while the Democratic governor of Illinois announced a special legislative session to ensure abortion access.

These states with 'trigger' bans will outlaw abortion as Roe v. Wade falls

Justice Stephen G. Breyer, who will retire from the court at the end of the term, dissented along with fellow liberals Sonia Sotomayor and Elena Kagan. They said the decision was devastating for women, especially low-income women in large swaths of the country where abortion access will be cut off or severely limited.

“It says that from the very moment of fertilization, a woman has no rights to speak of,” they wrote in a joint dissent. “A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

They added: “Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. ... But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

Alito was joined by Justices Clarence Thomas, and Trump’s three nominees, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, who joined the court less than two years ago, after the death of Justice Ruth Bader Ginsburg, the court’s most outspoken proponent of abortion rights.

As a presidential candidate, Trump promised to name justices who would overturn Roe. Republican Sen. Susan Collins (Maine) voted to confirm two of Trump’s three nominees and said at the time that Gorsuch and Kavanaugh had assured her that Roe was “settled law.” She admonished the court on Friday for “throwing out a precedent overnight that the country has relied upon for half a century.” The ruling, she said, was also “inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”

What conservative justices said about Roe at their confirmation hearings

Roberts, the chief justice, agreed with upholding the Mississippi law and allowing some abortion prohibitions before viability, the point at which a fetus could survive outside the womb. That line, about 22 to 24 weeks, was established in the court’s previous rulings.

But he found fault with his conservative colleagues’ haste, and worried for the court’s credibility.

“Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis,” he wrote, referring to the legal principle that past decisions of the court generally should be respected and rarely overturned. “The Court’s opinion is thoughtful and thorough, 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, would have gone even farther. In a concurring opinion no other justice joined, he said he agreed with the majority that nothing in the opinion “should be understood to cast doubt on precedents that do not concern abortion.” Yet, he also says that in future cases, “we should reconsider” all of the court’s past decisions that relied on similar legal reasoning in protecting rights, including access to birth control, homosexual intimacy and same-sex marriage. Perhaps, he wrote, they can be justified in other ways.

The dissenters picked up on that. “Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty,” they wrote. “The same could be said, though, of most of the rights the majority claims it is not tampering with. … 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 mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The decision comes as Americans’ confidence in the Supreme Court reached new lows, according to a Gallup poll released this week before the justices’ decisions to expand gun rights and restrict abortion access. The court itself is closed to the public and, while large crowds descended on the building Friday, chanting protesters regularly gather outside the justices’ homes.

Just the prospect of such a change, outlined in the leaked draft opinion, transformed the nation’s political landscape. Liberal states wrote abortion protections into law and proposed constitutional amendments safeguarding the right. States governed by Republicans have passed a blizzard of restrictions not currently allowed, and more than a dozen have passed laws that would outlaw abortion in most cases should Roe fall.

Supreme Court will investigate leaked draft of abortion opinion

Attorney General Merrick Garland called the outcome a “devastating blow to reproductive freedom in the United States” but said it still leaves states free to protect abortion rights. And that those in states where it will be eliminated are free to travel to where it is.

“We recognize that traveling to obtain reproductive care may not be feasible in many circumstances,” Garland, whose own nomination to the court in 2016 was blocked by Senate Republicans, said in a statement. “But under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.”

At least 13 states have trigger laws in place that would ban or restrict abortion immediately upon the fall of Roe v. Wade. (Video: Blair Guild/The Washington Post)

In his nearly 80-page opinion, Alito emphasized that the Constitution makes no mention of abortion nor is it a right “deeply rooted in the Nation’s history and tradition.”

The 14th Amendment says states may not “deprive any person of life, liberty, or property without due process of law.” But Alito wrote that the 1868 amendment could not be understood to refer to abortion, and that at the time it was adopted it was a crime in most states.

In response, the liberal justices said it was understandable that reproductive rights were not among the liberties guaranteed at the time the 14th Amendment was passed.

“ ‘People’ did not ratify the Fourteenth Amendment. Men did,” they wrote. “So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.”

The dissenters also said the majority opinion did not answer important questions, such as whether prohibitions must contain an exception for rape, incest or to save the life of the woman. Under some state laws recently passed in anticipation of Roe being overturned, “a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies,” they wrote.

The majority opinion said Mississippi included a health exception, and Kavanaugh, in a concurring opinion, tried to blunt some of those criticisms. He noted that “abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother.” He said that, in his opinion, a state could not bar a resident from traveling to another state to obtain an abortion.

Barrett, the only woman in the majority, did not write separately. But it was her replacement of Ginsburg, who died in the fall of 2020, that provided the court a fifth vote to overturn Roe.

The Mississippi law at issue would ban almost all abortions after 15 weeks of pregnancy, with narrow exceptions for medical emergencies or fetal abnormalities. It had not gone into effect because a federal district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said it could not be squared with the right to abortion established in Roe in 1973 and affirmed in 1992’s Casey.

Combined, Roe and Casey said that a state may not impose restrictions that would place an undue burden on a woman’s right to an abortion before viability. That refers to the time at which a fetus might survive outside the womb, usually estimated to be 22 to 24 weeks.

When it accepted the case in May 2021, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Mississippi initially said the court could uphold its law without overturning Roe or Casey, but changed its stance in its briefing and at oral argument.

From December: Supreme Court seems inclined to uphold Mississippi abortion law that would undermine Roe v. Wade

Mississippi Solicitor General Scott Stewart told the court that the two cases “have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve.”

U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said if the court did not protect its precedents, the restriction or even prohibition of abortion would be “severe and swift.”

“If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis,” said Prelogar.

Abortion providers from Georgia to California express how they are feeling about the Supreme Court's decision to overturn Roe v. Wade. (Video: Whitney Shefte, Whitney Leaming/The Washington Post, Photo: Eric Lee for The Washington Post/The Washington Post)

Mississippi already bans abortions after 20 weeks, and it has passed legislation that would ban most abortions after six weeks. Lower courts have declined to let that law, or the 15-week ban passed in 2018, take effect.

U.S. District Judge Carlton Reeves wrote in a 2018 ruling on the 15-week ban that the Mississippi legislature’s “professed interest in ‘women’s health’ is pure gaslighting.”

“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.

The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain — a factor the Supreme Court has never explicitly addressed.”

But the 5th Circuit said it was not the place of lower courts to challenge the Supreme Court.

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.”

Mariana Alfaro, Eugene Scott, John Wagner and Amy B Wang contributed to this report.

correction

A previous version of this article said incorrectly that Sen. Susan Collins (R-Maine) voted to confirm all of President Donald Trump’s Supreme Court nominees. She supported the appointments only of Justices Neil M. Gorsuch and Brett M. Kavanaugh.

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