(The Hill) – The Supreme Court on Friday struck down Roe v. Wade, eliminating the nearly 50-year-old constitutional right to abortion and handing states authority to drastically limit or ban the procedure.
The 6-3 decision by a majority of conservative justices to fundamentally reshape American society by overturning the landmark 1973 precedent is certain to ignite a political firestorm and yield a complex patchwork of state laws that will effectively block large swathes of the population from terminating unwanted pregnancies.
The ruling upholds Mississippi’s 15-week abortion ban, which directly clashed with Roe’s requirement that states permit abortion up to the point of fetal viability, around 24 weeks, as well as Planned Parenthood v. Casey, a 1992 decision that reaffirmed Roe’s core holding.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote for the majority. “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.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he continued.
More than two dozen states, primarily in the South and Midwest, are expected to tighten abortion access as a result of Roe falling, including 13 states with “trigger bans” set to take effect automatically or through minimal effort by state officials.
For conservatives, the toppling of Roe marks the crowning achievement of a carefully orchestrated and well-funded movement that for decades has sought to elevate reliable allies to the Supreme Court and erase federal protections under Roe that conservatives have long considered an infringement of states’ rights.
Chief Justice John Roberts joined in the majority’s judgment but said he would have preferred a more incremental approach that would not have required overturning Roe and Casey outright.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote in a concurring opinion. “Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them.”
The blockbuster decision comes after a stunning breach of Supreme Court secrecy last month led to the public release of a draft version of the opinion, offering a glimpse at the coming dismantlement of abortion rights, as well as the likely upheaval over a ruling that most Americans said they would oppose.
Writing for the majority, Alito emphasizes that his ruling was a narrow one and would not spillover to decisions on issues like same-sex marriage (Obergefell v. Hodges), sex between gay couples (Lawrence v. Texas) and the right to contraception (Griswold v. Connecticut).
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
But the opinion will be almost certain to fuel questions about whether rights that are seen as having a thin historical record and which are not explicitly referenced in the Constitution — so-called “unenumerated rights” — remain on a firm footing.
Justice Clarence Thomas, in a concurring opinion, wrote that the reasoning underlying Friday’s opinion should call into question constitutional protections for same-sex marriage, sex between gay couples and contraception, as they are currently understood. These rights are rooted in the well-established principle that the Due Process Clause of the 14th Amendment protects not only procedural safeguards but also substantive rights — a doctrine that Thomas has long rejected.
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents,” Thomas wrote. “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
In a fierce dissent Friday, the Supreme Court’s three liberals said the conservative majority’s decision means that “from the very moment of fertilization, a woman has no rights to speak of.”
The court’s liberal trio of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, in a blistering 66-page dissent, condemned the conservatives for toppling the delicate balancing of interests that Roe and Casey sought to strike.
“Today, the Court discards that balance,” they wrote in dissent. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” they added. “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.”
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