The U.S. Supreme Court officially reversed Roe v. Wade on Friday, declaring that the constitutional right to abortion upheld for nearly a half century, no longer exists.
Writing for the court majority, Justice Samuel Alito said that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming Roe “must be overruled” because they were “egregiously wrong,” the arguments “exceptionally weak” and so “damaging” that they amounted to “an abuse of judicial authority.”
Joining the Alito opinion were Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice Roberts, appointed by President George W. Bush, concurred in the judgment only, and would have limited the decision to upholding the Mississippi law at issue in the case, which banned abortions after 15 weeks.
Dissenting were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, appointed by President Obama.
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.
Indeed, the 78-page opinion, which has a 30-page appendix, seemingly leaves no authority uncited as support for the proposition that there is no inherent right to privacy or personal autonomy in various provisions of the Constitution — and similarly, no evidence that peoples’ reliance on the court’s abortion precedents over the past half century should matter.
Alito pointed for instance, to Planned Parenthood v. Casey, the 1992 decision that upheld the central holding of Roe and was written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, all Republican appointees to the court. Alito pointed to language in the Casey opinion that he said “conceded” reliance interests were not really implicated because contraception could prevent almost all unplanned pregnancies.
In fact, though, that 1992 opinion went on to dismiss that very argument as “unrealistic,” because it “refuse[s] to face the fact” that for decades “people have organized intimate relationships and made choices … in reliance on the availability of abortion in the event that contraception should fail.” Not exactly the concession that Alito described.
It is not unusual for justices to cherry pick quotes but not so out of context and not from former colleagues who are still alive and privately, not amused at all.
In the end, though, Alito’s opinion has a larger objective, perhaps multiple objectives.
Writing for the majority, he said forthrightly that abortion is a matter to be decided by states and the voters in the states. “We hold,” he wrote, that “the Constitution does not confer a right to abortion.” As to what standard the courts should apply in the event that a state regulation is challenged, Alito said any state regulation of abortion is presumptively valid and “must be sustained if there is a rational basis on which the legislature could have thought” it was serving “legitimate state interests,” including “respect for and preservation of prenatal life at all stages of development.” In addition, he noted, states are entitled to regulate abortion to eliminate “gruesome and barbaric” medical procedures; to “preserve the integrity of the medical profession”; and to prevent discrimination on the basis of race, sex, or disability, including barring abortion in cases of fetal abnormality.