In a landmark ruling, the Supreme Court declared in Roe v. Wade that every individual has a constitutional right to make their own decision regarding abortion. However, in a shocking turn of events almost half a century later, the Supreme Court overturned Roe in the Dobbs v. Jackson Women’s Health case in June 2022. Despite Chief Justice Roberts’ efforts to uphold the law, his proposed solution would have only weakened Roe. The new 6-3 majority, a result of the Trump presidency, flexed its power and displayed its dominance. But, the ruling faced intense pushback and the battle for reproductive rights continues to rage on.
The Supreme Court has decided hundreds of cases over the years. A few were landmark opinions, those of special importance, including one recognizing a constitutional right to choose an abortion. Almost fifty years later, there was another. This time taking away this right.
Roe v. Wade
The justices, nominated by Democratic and Republican presidents, held 7-2 that abortion can be regulated in a variety of ways. Nonetheless, until a fetus can survive outside the womb (viability), a person had the right to choose an abortion. After viability, the government could ban all abortions, except those necessary to protect the life or health of the pregnant person.
The constitutional right to choose an abortion continued to be protected, reaffirmed by the Supreme Court in Planned Parenthood v. Casey (1992). This ruling also emphasized that the right to choose an abortion is important for gender equality.
A Lot of Controversy
A Supreme Court decision does not mean the question involved is settled for all time. Important questions that address various issues that greatly divide us are likely to continue to be a matter of debate. Abortion is such a major divisive controversy.
Abortion was a major issue in elections even before Roe and continued to be a major political issue for decades. It also is a factor used to determine what type of judge should be on the Supreme Court with Republicans strongly opposed to abortion rights.
In time, an issue that originally split the Supreme Court 7-2 became a much more divided issue. The Casey decision was 5-4. The Clinton presidency insured abortion rights would remain in place. The Supreme Court in time became more conservative but still protected abortion rights.
The death of a conservative justice in 2016 made the upcoming presidential election very important. The Court was now evenly divided, the Republican Senate refusing to confirm a replacement until after the election. Many thought abortion rights would win in November.
And, then Donald Trump was elected president.
Abortion Rights Loses Its Majority
President Trump in his four years in office was able to nominate three justices to the Supreme Court, providing a 6-3 conservative supermajority. Each confirmation, including filling a seat left open until he was in office, was controversial. The country was strongly divided.
The sixth vote, the replacement of long-term liberal and women rights activist Ruth Bader Ginsburg in 2020, was the ultimate deciding factor.
Chief Justice John Roberts Offers A Compromise
Mississippi passed a law banning most abortions that occurred after fifteen weeks of pregnancy. An abortion provider (Jackson Women’s Health) brought a lawsuit challenging the law, suing Thomas Dobbs, a state officer with the duty of enforcing it.
The lower courts held the law was unconstitutional. The Supreme Court did not have to take the case for review. It did so but limited the appeal to whether this specific type of law, which violated the rule set forth in Roe (viability or about 24 weeks), was legitimate.
Chief Justice Roberts was willing to hold that this type of law was allowable. Roberts argued that as long as a person had a significant amount of time to have an abortion, the Constitution was not violated. Roberts is a conservative but over the years was open to some compromise.
Roe v. Wade Is Overruled
The Supreme Court now had six conservatives, however, so Roberts alone would not obtain a majority. And, the five other conservatives did not want to go halfway.
The opinion was handed down in June 2022. But, in a very surprising turn, the draft of the opinion was leaked beforehand. The draft was written by Justice Alito, a strong opponent of the constitutional right to choose an abortion. It completely overturned Roe v. Wade.
The final opinion largely was the same as the draft. Justice Alito for five justices declared that Roe v. Wade was “egregiously wrong” and should be overturned. Roberts also voted to uphold the law but only on narrow grounds. He opposed overturning Roe.
The majority opinion argued that the people through their elective leaders had the power to ban abortion from the very beginning of pregnancy. An abortion ban would regulate pregnancy, but would not be constitutionally considered a form of gender discrimination.
The liberal justices, including Justice Stephen Breyer who would soon retire, strongly dissented. The justices took the rare approach of dissenting jointly, dissents usually only in the name of one justice. This time, each justice signed their name as an author of the dissent.
The dissent argued that there was no good reason provided to overturn a constitutional holding in place for nearly fifty years (the principle of stare decisis).
They also declared that the right to choose an abortion is part of our right to individual liberty as well as essential to gender equality. The majority opinion argued that it was limited to abortion rights but the dissent argued that the opinion threatened many more rights.
Still More Controversy
Mary Zeigler is a historian who has written multiple books on the history of the conflict over abortion. She has argued that no ruling, for or against, on abortion rights is likely to be the last word. Some will push for a more conservative ruling, others a more liberal result.
Many people, including the President and Vice President of the United States, strongly opposed the Dobbs ruling. A majority of the American public support some degree of abortion rights. The threat to abortion rights was a major issue in the 2022 elections.
The Dobbs majority argued Roe v. Wade wrongly took away the right of the people to decide for themselves on this controversial question. The U.S. Constitution protects certain rights (such as free speech) even if a majority votes otherwise. The courts protect these rights, at times, even in the face of laws passed by local and federal legislatures.
Where do abortion rights fall? Was Roe or Dobbs a correct application of judicial review? After fifty years, the controversy over the answer to that question continues.