This morning the U.S. Supreme Court handed down a ruling finding that there is no constitutionally-protected right to an abortion, overturning the fifty-year-old Roe vs. Wade and thirty-year-old Planned Parenthood vs. Casey decisions that had established that right.
The majority opinion follows closely the leaked Alito draft, but this final version also includes three concurrences and one dissent.
Roberts wrote a concurrence explaining that he believes the majority opinion goes too far; that the Roe viability and Casey “undue burden” tests are wrong and unworkable, but he would not have tossed out Roe and Casey in their entirety.
Kavanaugh wrote a concurrence saying that Roe and Casey were wrongly decided and that the court should be “neutral” on abortion. He also says that he doesn’t believe today’s precedent applies to other landmark cases such as the ones tossing prohibitions on contraception, mixed-race marriages and same-sex marriage. He also says that he doesn’t believe that a state can prohibit or punish a woman for traveling to another state to procure an abortion.
Both Roberts and Kavanaugh express skepticism that a state law prohibiting an abortion undertaken in order to save the life of the mother would be constitutional.
Thomas wrote that he believes that there is no such thing as “substantive due process,” and that the Fourteenth Amendment’s “due process” clause only applies to process issues. He also clearly state that he wants the Court to overturn its prior 14th-amendment-based rulings on contraception and same-sex marriage (among others), though he carefully omits Loving vs. Virginia, the case that threw out prohibitions on mixed-race marriages (Thomas is a Black man married to a White woman).
Breyer, Kagan and Sotomayor co-authored a dissent, which is a tour-de-force and should be read in its entirety. Among the points they make: despite the majority’s reliance on an “originalist” reading of the 14th Amendment based upon what lawmakers (and society) believed at the time, one must remember that women did not even have the right to vote at that time. Interpreting the 14th Amendment to only protect “liberty” to the extent that it existed in 1868, they argue, is perverse and would roll back all sorts of well-recognized human rights today.
Much of the majority opinion and the dissent are devoted to arguments over the principle of stare decisis — “to stand by things decided” — and whether Roe and Casey meet the standard to justify being overturned. The majority leans heavily on an argument that restrictions on abortion are “deeply rooted in the nation’s history” — an argument that the dissent eviscerates. The majority, however, gives little discussion to the other part of the stare decisis test: the extent to which people have built a reliance on the existing precedent that would be upended if overturned; the dissent, however, explains in great detail how many women have come to rely on access to safe, legal abortion to take and maintain control over their own lives, and that today’s ruling unfairly punishes poor women and women of color the most since they have the least access to healthcare and the least means to travel to another state to obtain an abortion.
This is not the last abortion case that the Supreme Court will ever hear; no doubt in the short term there will be cases that test extreme prohibitions on abortion and limits on interstate travel to access abortion services — as well as prohibitions on private parties providing financial and logistical support for women seeking to cross state lines to obtain an abortion. In the long term, with a now substantially lowered bar for overturning past precedent, a more left-leaning Supreme Court may flip the decision again.
But today, this ruling joins the very short list of infamous cases where the Court explicitly chose to take away rights, including Plessy vs. Ferguson, Dred Scott, and Korematsu.
