WASHINGTON — The Supreme Court on Friday overturned the landmark Roe v. Wade ruling that guaranteed a constitutional right to abortion, a momentous break from a half-century of rulings on one of the nation’s most contentious issues. About half the states have already indicated they would move to ban the procedure.
The court ruled 6-3 to uphold a Mississippi abortion ban being challenged in the case and 5-4 to overturn Roe. In the majority opinion, Justice Samuel Alito wrote that the court’s decision in Roe “sparked a national controversy that has embittered our political culture for a half century.”
Legal scholars said the decision to overrule Roe is one of the few times the Supreme Court has ever invalidated an earlier decision that declared a constitutional right — and the only time it took away a right that had considerable public support.
The ruling came in a dispute over a 2018 law passed by Mississippi’s Republican-controlled Legislature that banned abortions after 15 weeks. The law, which made exceptions for medical emergencies or cases of severe fetal abnormality but not for rape or incest, was immediately challenged and put on hold by lower courts.
The law constituted a direct attack on the court’s landmark 1973 Roe v. Wade decision as well as a follow-on ruling in 1992, Planned Parenthood v. Casey, under which states could impose some restrictions on abortion before viability, provided they did not constitute an “undue burden” on the right of access to the procedure. But flat-out bans before viability, generally considered to be about 24 weeks into a pregnancy, were deemed to be unconstitutional.
Those rulings are no longer the law of the land, in part because of the court’s changed composition. Two members of the court who joined in its earlier abortion decisions, Ruth Bader Ginsburg and Anthony Kennedy, were succeeded by justices appointed by then-President Donald Trump: Amy Coney Barrett and Brett Kavanaugh. Trump had declared that he would put “pro-life justices on the court.”
"We hold that Roe and Casey must be overruled," Alito wrote in the opinion, which was backed by Justices Clarence Thomas, Neil Gorsuch (also appointed by Trump), Kavanaugh and Barrett. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment."
"It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives," he wrote, calling the original Roe decision "egregiously wrong and deeply damaging."
In a concurring opinion, Kavanaugh noted that states retained the power to limit or grant the right to an abortion.
"After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue," he wrote.
Thomas, meanwhile, called on the court to revisit other decisions, including on contraception and same-sex marriage, in his opinion agreeing with the majority ruling. He wrote that he would do away with the doctrine of "substantive due process" and explicitly called on the court to overrule the rulings in Griswold v. Connecticut, on the right to contraception; Lawrence v. Texas, on the right to same-sex intimacy; and Obergefell v. Hodges, on the right to same-sex marriage.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote.
Chief Justice John Roberts joined the other conservative justices in the decision to uphold the Mississippi law, but he urged in a concurring opinion against going further.
"Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis," Roberts wrote.
In a furious dissent, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said the court "reverses course today for one reason and one reason only: because the composition of this Court has changed."
“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,” the justices added.
"With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent," they concluded.
Biden, lawmakers press for codifying Roe
The court’s ruling does not make abortion illegal, but with access to the procedure no longer deemed a constitutional right, states can now move to ban it.
Supporters of abortion rights were bracing for the loss after an early draft of the opinion was leaked in May, touching off several days of demonstrations in more than two dozen cities. Protesters even showed up outside the homes of some members of the court.
Alarmed by the prospect that Roe would be overturned, Democrats in Congress responded to the leak by holding a Senate vote to advance legislation that would guarantee access to abortion nationwide. The bill was blocked, however, in a largely party-line vote.
President Joe Biden said in remarks from the White House that Friday's ruling was "a tragic error by the Supreme Court" that had put women's health and lives "at risk."
The president vowed to do what he could to keep abortion accessible, but he said the "only way we can secure a woman's right to choose is for Congress to restore the protections of Roe v. Wade as federal law." That can't be accomplished without more Democrats in the House and Senate, Biden said, meaning, "This fall, Roe is on the ballot."
Democratic leaders in Congress swiftly condemned the ruling. Senate Majority Leader Chuck Schumer, D-N.Y., said the decision marked "one of the darkest days our country has ever seen. Millions upon millions of American women are having their rights taken from them by five unelected Justices on the extremist MAGA court."
House Speaker Nancy Pelosi, D-Calif., suggested at a news conference that the Trump-appointed justices who joined in the majority decision had lied when they told senators during their confirmation hearings that they respected the precedent of past rulings.
“Today, the Republican-controlled Supreme Court has achieved the GOP’s dark and extreme goal of ripping away women’s right to make their own reproductive health decisions,” she said in a statement after the ruling. “Because of Donald Trump, Mitch McConnell, the Republican Party and their supermajority on the Supreme Court, American women today have less freedom than their mothers.”
Centrist Sen. Joe Manchin, D-W.V., said he was “deeply disappointed” by the ruling and singled out Kavanaugh and Gorsuch, whom he voted to confirm, for backing the overturning of Roe.
“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans,” Manchin said. While he considers himself pro-life, he said he supports "legislation that would codify the rights Roe v. Wade previously protected. I am hopeful Democrats and Republicans will come together to put forward a piece of legislation that would do just that.”
Sen. Susan Collins, R-Maine, a moderate who also voted to confirm Gorsuch and Kavanaugh, called the ruling "ill-considered" and suggested that she, too, had been misled. “This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” she said. Collins added that she, too, would continue to push for legislation to codify the rights that had been enshrined by previous court precedent.
In response to the ruling, the Senate Judiciary Committee tweeted that it “will hold a hearing next month to explore the grim reality of a post-Roe America.”
Trump and other Republicans praise decision
Former President Donald Trump, who nominated three of the justices who voted to overturn Roe, told Fox News that Friday's decision is “following the Constitution, and giving rights back when they should have been given long ago.”
In a statement a short time later, Trump called the ruling "the biggest WIN for LIFE in a generation." He said it was "only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court."
House Minority Leader Kevin McCarthy, R-Calif., also praised the court’s action. “Every unborn child is precious, extraordinary, and worthy of protection. I applaud this historic ruling, which will save countless innocent lives,” he said. “The Court is right to return the power to protect the unborn to the people’s elected representatives in Congress and the states.”
Senate Minority Leader Mitch McConnell, the Kentucky Republican who reshaped the balance of the court by refusing to hold confirmation hearings for then-President Barack Obama's Supreme Court nominee and later rushed Trump's nomination of Barrett, hailed the ruling as "courageous and correct. This is an historic victory for the Constitution and for the most vulnerable in our society.”
The court's decision was a huge victory for supporters of Mississippi’s law, who argued that the state measure was intended to regulate “inhumane procedures” and argued that a fetus is capable of detecting and responding to pain by that point in a pregnancy.
But Friday's ruling was a bitter defeat for advocates of abortion rights, who struggled to maintain them while courts narrowed their application over the past five decades.
“Knowing this moment would come does not make it any less devastating,” Alexis McGill Johnson, president of the Planned Parenthood Action Fund, said. “The Supreme Court has now officially given politicians permission to control what we do with our bodies, deciding that we can no longer be trusted to determine the course for our own lives.”
The Center for Reproductive Rights had urged the court to maintain its earlier abortion rulings that upheld a right of access to abortion.
“Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy,” Julie Rikelman, a lawyer for the group, told the justices.
Lawyers for Mississippi, however, said the law would have a minimal impact on women in the state because its only abortion clinic does not perform the procedure after 16 weeks. More than 90 percent of abortions take place before or during the 13th week of pregnancy, they said.
Texas case foreshadowed ruling
The court’s decision was the second ruling this term limiting access to abortion. In December, the court allowed a Texas law to remain in force while lower court challenges are underway. The law effectively bans abortion after six weeks of pregnancy by authorizing lawsuits against abortion providers or anyone who assists them.
Its unorthodox method of enforcement was intended to get around the Supreme Court’s earlier abortion rulings that prevented states from simply banning abortion directly. But last June, Gov. Greg Abbott, a Republican, signed a law that would ban abortion in the state within 30 days after a ruling striking down Roe.
In about half the country, abortion is soon likely to be illegal. Texas is one of about two dozen states that were considered certain or likely to ban abortion once the Supreme Court’s abortion precedents were overturned. Thirteen of those states already have measures known as trigger laws, intended to take effect when Roe was overturned or shortly after.
But abortion will remain legal in the other half of the nation, including in such populous states as California, New York, Illinois, New Jersey, and Pennsylvania.