Legal grounds and support for Roe v. Wade
At the time of the Court’s hearing of Roe v. Wade, abortion was illegal in Texas, except in cases where it was necessary to protect the life of the mother. The question deliberated by the court was whether the Constitution recognizes a woman’s right to terminate her pregnancy by abortion. In January 1973, the Court issued a 7-2 majority ruling that the Texas law was unconstitutional, and that a woman’s right to terminate her pregnancy resides in the Fourteenth Amendment of the U.S. Constitution, under what is known as the due process clause. The court argued that this clause provides a fundamental “right to privacy” that protects a pregnant woman’s liberty to seek abortion services without government interference.Beyond the right to privacy afforded by the Constitution, advocates of Roe v. Wade and reproductive rights more broadly describe abortion access as being closely tied to women’s rights, as well as personal freedom, and bodily integrity. Supporters have also reasoned that access to safe abortion and reproductive freedom are fundamental rights. Opinion polls indicated that a sizable majority of the American population were opposed to overturning Roe, and wide support for legal abortion more broadly. Despite public opinion, 660 limits or restrictions were implemented on abortion access at the state level between 2001 and 2022.
Dobbs v. Jackson Women’s Health Organization
Dobbs v. Jackson Women’s Health Organization is a landmark decision that overturned both Roe v. Wade and Planned Parenthood v. Casey. The case centered around a legal challenge to the state of Mississippi’s 2018 Gestational Age Act by the state's only abortion clinic. The act prohibits abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities, and no exception for cases of rape or incest. Although a majority of abortions happen before eight weeks, Supreme Court precedent outlined by Planned Parenthood v. Casey dictated that abortions should be unrestricted up to the point of fetal viability, which is generally considered to be 24 weeks.The decision
On June 24, 2022, the Court issued a 6-3 majority judgement which held that abortion is not a protected right under the Constitution, overturning 50 years of legal precedent, and thus returning decisions regarding abortion back to state governments. In the initial days after the ruling, polling found that only 34 percent of Americans approve of the decision.The majority opinion was written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – the latter three of which were appointed to the Court by Donald Trump during his presidency. In the majority opinion, Alito stated that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences” referring to an increasingly polarized population across party lines, with abortion being a particularly divisive topic. Justice Clarence Thomas further argued that the Court should also reconsider other past Supreme Court cases that granted rights on the same due process clause as Roe, such as Griswold v. Connecticut (the right to contraception), and Obergefell v. Hodges (same-sex marriage). Justice Brett Kavanaugh wrote that it would still be unconstitutional to prohibit a woman from going to another state to seek an abortion. Chief Justice John Roberts wrote a separate concurring judgement that upheld the Mississippi law as constitutional, but that he did not agree with the decision to overturn Roe and Casey in their entirety.
Roe overturned
In the immediate months after the ruling, twenty-six U.S. states seem likely to ban abortion. Thirteen of these states had already established so-called "trigger laws'' prior to the ruling that will come into effect in the coming weeks, although some remain tied up in litigation. If all 26 states are successful, an estimated 36 million women will lose their access to safe abortion services. Immediately after the overturning, abortion became illegal in Texas, Louisiana, Oklahoma, Kentucky, and South Dakota, with more states poised to follow suit.In the months between April and August 2022, the abortion rate in 10 U.S. states decreased by 100 percent, and decreased by six percent nationally. More liberal states will continue to allow abortion, and some have already begun drafting laws to help and protect women who live in states looking to restrict abortion. Kansas, for example, saw an increase in abortions by 36 percent, likely due to its neighboring states implementing more restrictive access to abortion. In 2023, Minnesota passed the Protect Reproductive Options (PRO) act, making it one of the first U.S. states to ensure abortion remains a legally bound, fundamental state right. Another possibility is an act of the United States Congress that establishes a national right to an abortion, which 40 percent of Americans have indicated their support for.
