The US Supreme Court on Friday took the dramatic step of overturning the landmark 1973 Roe v. Wade ruling that recognised a woman’s constitutional right to an abortion and legalised it nationwide, handing a momentous victory to Republicans and religious conservatives who want to limit or ban the procedure.
The court, in a 6-3 ruling powered by its conservative majority, upheld a Republican-backed Mississippi law that bans abortion after 15 weeks.
The vote was 5-4 to overturn Roe, with Chief Justice John Roberts writing separately to say he would have upheld the Mississippi law but not taken the additional step of erasing the precedent altogether.
The justices held that the Roe v. Wade decision that allowed abortions performed before a foetus would be viable outside the womb – between 24 and 28 weeks of pregnancy – was wrongly decided because the US Constitution makes no specific mention of abortion rights.
A draft version of the ruling written by conservative Justice Samuel Alito indicating the court was likely to overturn Roe was leaked in May, igniting a political firestorm. Friday’s ruling authored by Alito largely tracked his leaked draft.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote in the ruling.
Roe v. Wade recognised that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy. The Supreme Court in a 1992 ruling called Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed abortion rights and prohibited laws imposing an “undue burden” on abortion access.
“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,” Alito added.
Overturning Roe v. Wade has long been a goal of Christian conservatives and many Republican officeholders.
By erasing abortion as a constitutional right, the ruling restores the ability of states to pass laws prohibiting it. Twenty-six states are seen as either certain or likely now to ban abortion. Mississippi is among 13 states already with so-called trigger laws designed to ban abortion if Roe v. Wade were to be overturned.
The court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – issued a jointly authored dissent.
“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.
As a result of Friday’s ruling, “from the very moment of fertilisation, 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,” the liberal justices added.
Crowds of anti-abortion activists, who had gathered outside the courthouse for days, erupted in cheers as news of the ruling spread.
“I’m ecstatic,” said Emma Craig, 36, of Pro Life San Francisco. “Abortion is the biggest tragedy of our generation and in 50 years we’ll look back at the 50 years we’ve been under Roe v. Wade with shame.”
House of Representatives Speaker Democrat Nancy Pelosi, a Democrat, denounced the decision, saying that a “Republican-controlled Supreme Court” has achieved that party’s “dark and extreme goal of ripping away women’s right to make their own reproductive health decisions.”
Justice Brett Kavanaugh, in a concurring opinion, appeared to nix the idea advocated by a number of anti-abortion advocates, that the next step is for the court to declare that the Constitution outlaws abortion nationwide. “The Constitution neither outlaws abortion nor legalises abortion,” he wrote.
Kavanaugh, a potentially pivotal vote in future abortion cases, also said that the ruling does not let states bar residents from traveling to another state to obtain an abortion, or retroactively punish people for prior abortions – actions protected by other constitutional rights.
Mississippi’s law had been blocked by lower courts as a violation of Supreme Court precedent on abortion rights. Abortion is likely to remain legal in liberal states. More than a dozen states currently have laws protecting abortion rights. Numerous Republican-led states have passed various abortion restrictions in defiance of the Roe precedent in recent years.
Before the Roe decision, many states banned abortion, leaving women who wanted to terminate a pregnancy with few options.
As a result of Friday’s ruling, women with unwanted pregnancies in large swathes of America may face the choice of traveling to another state where the procedure remains legal and available, buying abortion pills online or having a potentially dangerous illegal abortion.
Republican former President Donald Trump as a candidate in 2016 promised to appoint justices to the Supreme Court who would reverse Roe. He was able to appoint three conservative justices – a third of the total – during his four years in office, moving the court rightward and building a 6-3 conservative majority. All three Trump appointees – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were in the majority in Friday’s ruling.
Jackson Women’s Health Organisation, the only abortion clinic remaining in Mississippi, challenged the 2018 law and had the support of Democratic President Joe Biden’s administration at the Supreme Court. The law allows abortions when there is a “medical emergency” or a “severe foetal abnormality” but does not have an exception for pregnancies resulting from rape or incest.
A federal judge in 2018 struck the law down, citing the Roe precedent. The New Orleans-based 5th US Circuit Court of Appeals in 2019 reached the same conclusion.
Roberts denounced the May 2 leak of Alito’s draft opinion in the case and announced an investigation to identify the culprit. Supreme Court leaks are extremely rare, especially concerning internal deliberations before a ruling is issued.
Following the leak, Biden condemned the overturning of Roe as a “radical” step and urged Congress to pass legislation protecting abortion access nationally.
Thousands of people rallied for abortion rights in Washington and other cities after the leak, including some protesters at the homes of some conservative justices.
A California man armed with a handgun, ammunition, a crow bar and pepper spray was arrested near Kavanaugh’s Maryland home on June 8 and charged with attempted murder.
The justices in 2016 struck down a Texas law imposing strict regulations on abortion facilities and doctors. The justices in 2020 struck down a Louisiana law that similarly placed restrictions on doctors who perform abortions. But the court has become more conservative in recent years with the addition of three appointees made by former President Donald Trump.
Since 2018, the court lost two champions of abortion rights. Liberal Justice Ruth Bader Ginsburg died in 2020, being replaced by Barrett, who as an academic before joining the judiciary signalled support for overturning Roe.
Justice Anthony Kennedy, a conservative who sometimes sided with the liberal justices on social issues such as abortion and LGBT rights, retired in 2018 and was replaced by Kavanaugh. Kennedy was part of the majority in the 1992 decision and voted to strike down the Texas abortion restriction in 2016.
Gorsuch in 2017 replaced the late conservative Justice Antonin Scalia, who was an abortion opponent.
Opinion polls show a majority of Americans support abortion rights. But overturning Roe has been a goal of anti-abortion activists and Christian conservatives for decades, with annual marches in Washington including in January of this year.
The number of US abortions increased by 8 per cent during the three years ending in 2020, reversing a 30-year trend of declining numbers, according to data released on June 15 by the Guttmacher Institute, a research group that supporters abortion rights.
The U.S. abortion rate peaked in 1980, seven years after the Roe ruling, at 29.3 abortions per 1,000 women of child-bearing age – 15-44 – and stood at 13.5 per 1,000 in 2017 before increasing to 14.4 per 1,000 women by 2020.
In 2020, there were 930,160 US abortions, with 20.6 per cent of pregnancies ending in abortion in 2020, up from 18.4 per cent in 2017. Mississippi experienced a 40 per cent increase in abortions performed from 2017 to 2020.
Globally, abortion rights generally have been increasing. The UN World Health Organisation said around 73 million abortions take place globally each year, including 29 per cent of all pregnancies.
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