The high court rejects key rulings in stark reversal of bodily autonomy protections
Six conservative justices, who now make up a majority on the nine-member court, have ruled in favour of a Mississippi law that outlaws abortion at 15 weeks of pregnancy while also overturning key precedents established by the 1973 decision in Roe v Wade as well as an affirming decision in 1992’s Planned Parenthood v Casey.
“With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent,” reads the dissenting opinion from Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
“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 wrote.
A decision from the nation’s high court on 24 June marks a stark reversal of abortion rights protections that could force women to carry pregnancies to term or seek care in states or countries where it is protected, ending 50 years of federal protections for abortion access and leaving it up to states to determine whether to ban the procedure – which will quickly become criminalised or effectively outlawed in roughly half the US.
The Roe decision affirmed constitutional protections for abortion care up to 23 or 24 weeks of pregnancy, while the Casey ruling sought to prohibit states from placing an “undue burden” on abortion access.
A decision in Dobbs v Jackson Women’s Health Organization – signalled in a draft of the opinion that was leaked in May – was met with a furious response from abortion rights advocates and widespread protest.
Advocates have pressed Democratic officials to fortify abortion rights against the actions of the court and anti-abortion state legislators after they failed to codify Roe protections across several administrations.
House Speaker Nancy Pelosi condemned the Republican-appointed conservative majority for fulfilling the GOP’s “dark and extreme goal of ripping away women’s right to make their own reproductive health decisions.”
“A woman’s fundamental health decisions are her own to make, in consultation with her doctor and her loved ones – not to be dictated by far-right politicians,” she said.
Former President Barack Obama said the court “relegated the most intensely personal decision someone can make to the whims of politicians and ideologues – attacking the essential freedoms of millions of Americans.”
“This is what our mothers and grandmothers and great-grandmothers lived through, and now here we are against,” Former First Lady Michelle Obama said.
Writing for the court’s majority, conservative Justice Samuel Alito claims that the Roe decision was “egregiously wrong from the start” and its arguments so “exceptionally weak” and “damaging” that they amounted to “an abuse of judicial authority.”
The Roe decision relied on protections in the 14th Amendment, drafted in the Reconstruction-era aftermath of the US Civil War, that prohibits states from “[depriving] any person of life, liberty, or property, without due process of law” – granting so-called “unenumerated” rights such as the right to privacy and freedom from government intervention in profoundly intimate medical decisions that are not explicitly identified in the Constitution.
Justice Alito’s opinion states that abortion rights are not “rooted in the nation’s history and tradition” and not “mentioned” in the Constitution, therefore illegitimate, though that list, which even he acknowledges, is extensive – including the right to obtain contraception or marry a person of another race or sex.
Scholars have warned that a ruling to undermine Roe could compel right-wing legal efforts to strike down LGBT+ rights, marriage equality and marital benefits, the rights to public education, and attempts to revisit critical civil rights decisions that relied on 14th Amendment protections.
The court’s decision could constrain far-reaching consequences, from the withdrawal of physicians in states where abortion care is severely restricted to the closure of clinics that provide other reproductive health services.
Hundreds of physicians, medical groups and abortion rights organisations have condemned the decision, warning of the severe long-term consequences of carrying unwanted or medically unsafe pregnancies.
Opponents also have warned that patients and providers could face the risk of prosecution for ending their pregnancies in states where abortion will be outlawed, as well as the possibile criminalisation of miscarriages and in vitro fertilisations and obstacles to obtaining certain forms of birth control and contraception.
The Roe ruling “was on a collision course with the Constitution from the day it was decided,” according to Justice Alito.
A Supreme Court decision to undo the Roe ruling has long been the ambition of a so-called “pro-life” movement that has radically changed how many Americans talk or learn about abortion access, rallying “single-issue” voters into a powerful Republican base while drafting state-level legislation and promoting anti-abortion figures that enabled the political environment to end Roe.
“It is a victory [for the movement], and it also poses the more difficult question about what’s next,” according to Florida State University College of Law professor Mary Ziegler, author of Abortion and the Law in America: Roe v Wade to the Present and forthcoming Dollars for Life: The Antiabortion Movementand the Fall of the Republican Establishment.
“It’s a lot easier to be in the opposition than it is to be the person in a position to actually do something,” she told The Independent last month. “Now you’re going to see anti-abortion groups in the states give us a sense of, ‘What does it actually mean to be pro-life?’ Does it mean you just put people in jail for [performing] abortions or having abortions, or is there more to it than that?”
Justice Alito’s opinion suggests Roe has inflamed political divides, appearing to paint anti-abortion proponents as victims within a long-running cultural and political battle that “what’s wrong with American politics somehow has to do with Roe,” according to Ms Ziegler.
Despite growing consensus among Americans in support of protecting abortion access, conservative legislators have enacted sweeping restrictions on abortion care.
In 2022, a wave of anti-abortion legislation in Republican-led states anticipating the Supreme Court’s forthcoming decision proposed eliminating abortion access in most cases and criminalising abortion care by making it a felony for providers to see abortion patients.
Abortion patients in many states already face requirements for ultrasounds, state-directed counseling and waiting periods, bans on the use of certain health insurance to cover abortion care, and bans on telemedicine appointments to obtain prescriptions for medication abortion, the most common form of abortion.
Patients also have faced long wait times in overstressed medical systems, after Texas implemented a ban on abortions at six weeks of pregnancy last year. In December, the Supreme Court refused to intervene in a legal challenge to the Texas law, emboldening other states to pursue other restrictive anti-abortion measures.
Roughly 62 per cent of American women live within 10 miles of an abortion clinic. If state-level bans go into effect without Roe protections, that figure would be cut nearly in half. The typical median distance a patient would have to travel would likely tripple, up from roughly 39 miles to 113 miles.
Black women would experience the most dramatic increase in distance to care, followed by Hispanic women and those living in poverty.
Meanwhile, 16 states and Washington DC have enacted laws that protect the right to abortion.
Whether a patient can access care – and whether their provider will be criminalised – will depend on where they live, not just on a state-by-state level but county by county, redrawing the nation’s map for bodily autonomy protections.
The right to an abortion and the criminalisation of healthcare will rely on a “two-tiered system” of justice, said Jose Garza, the district attorney of Travis County, Texas, who has preemptively refused to prosecute cases involving the state’s anti-abortion laws.
Roughly one in four women in the US will have an abortion by age 45, according to an estimate from the reproductive health research group Guttmacher Institute.
According to Guttmacher, more than half of all abortions are performed with medication abortion, a two-drug regimen that can be taken at home and in many cases obtained by mail. The US Food and Drug Administration has approved the treatment for use up to 10 weeks of pregnancy. In December, the FDA approved its distribution by mail.
The group estimates that 18 per cent of pregnancies in the US end in induced abortions.
Most abortions within the first trimester, according to the US Centers for Disease Control and Prevention. In 2019, nearly 93 per cent of abortions were performed before the 13th week.
The decision from the Supreme Court followed weeks of speculation after a leaked draft of the opinion was published in Politico.
On 3 December, 2021, two days after the justices heard oral arguments in the Dobbs case, the justices convened for their regularly scheduled weekly conference for preliminary votes on recent cases – including the Dobbs case, which posed a central question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Justices Alito, Clarence Thomas, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh – the latter three of whom were appointed by Donald Trump – voted “no”, according to Politico. Two months later, Justice Alito authored the draft, dated 10 February.
The court’s investigation into the draft’s leak is ongoing.