For the first time in the nation’s 233-year history, the Supreme Court on Friday erased a constitutional right. Five of the Court’s conservative Justices joined to overrule Roe v. Wade and also a later ruling that reinforced that basic decision.
What that means, and the Court majority said this was exactly what it intended, is that a woman’s opportunity to decide whether to end a pregnancy now depends entirely upon what Congress and 50 state legislatures decide. Without a right based on the national Constitution, lawmakers all across the nation will have a much broader option of controlling women’s decisions on their own reproductive destiny.
The ruling does not mean that the Constitution requires Congress or the state legislatures to impose bans on abortion; it leaves that up to legislative bodies.
Congress, as closely divided as it is along partisan lines, is not likely to do anything to create a nationwide right to abortion through legislation. The Senate voted twice this year not to allow even debate on a proposed bill, previously approved narrowly by the House of Representatives, to write abortion rights into national law.
Among the 50 states, the Guttmacher Institute, a respected chronicler of abortion issues, has predicted that once Roe was erased, 26 states “are certain or likely to ban abortion.” The right appears to be safer if not guaranteed in the other 24 states and Washington, D.C.
Justice Samuel A. Alito, Jr., whose draft opinion arguing for ending abortion rights was leaked to the public in May, wrote the final opinion that closely tracked the earlier version. The final opinion was supported in full by conservative Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Clarence Thomas.
Alito’s opinion was so broad and covered so many facets of the constitutional question that the Court’s own summary of the ruling ran to eight pages of small type. With appendices, the main opinion totaled 108 pages.
Justice Kavanaugh wrote a separate opinion seeking to stress that the ruling does not undercut other constitutional rights that are based upon the same “right of privacy” that is the foundation of a constitutional right to an abortion – such as a right to use birth control, or a right to marry a person of another race or of the same sex. While no other Justice joined him, Kavanaugh claimed that the majority opinion supported this view.
However, Alito’s opinion described as “controversial” the core constitutional argument that was behind both the abortion decisions and rulings declaring the existence of those other forms of personal rights. That is the argument that the 14th Amendment – the main part of the Constitution which now protects rights against state governments – includes the “Due Process Clause” as a guarantee not only of fair processes or procedure in government actions, but also a “substantive” protection of rights borrowed from the first ten amendments, the Bill of Rights.
Justice Thomas, who is a sharp critic of that view of what “due process” means, wrote a separate opinion arguing that “we should eliminate it from our jurisprudence at the earliest opportunity.” That single sentence will send shudders through the nation’s ranks of civil rights organizations and lawyers.
Chief Justice John G. Roberts, Jr., who often is a part of the Court’s newly enlarged conservative bloc, wrote a separate opinion speaking only for himself. He argued that the Court should not have gone so far, at this point, as ending the abortion right altogether. He would have preferred instead to uphold the specific Mississippi state law that was directly at issue – that is, a ban on all abortions after a pregnancy has reached 15 weeks.
Although his approach may have seemed more moderate, Roberts expressly agreed with the majority in nullifying a key part of the two main abortion rulings: under those decisions, abortion could not be banned altogether before a pregnancy had reached “viability” – the point at which a fetus could survive if delivered (generally, at about 24 weeks).
Without such a clear dividing line, however, state legislatures would appear to now be free to ban abortions even before 15 weeks – as, for example, the state of Texas has done with a law that bans the procedure after six weeks (the point at which a doctor might be able to detect a fetal heartbeat).
While some legislatures would prefer to ban abortion at any point during pregnancy, Roberts did say that the Mississippi law was valid with a 15-week cutoff of the right because that gave pregnant women about three months after most women would know they are pregnant in which they could decide to have an abortion.
Women in America have had a constitutional right to seek an abortion for more than 49 years, since the Roe decision was issued in January 1973. That ended with Friday’s overruling.
Also overruled on Friday was the Court’s 1992 decision in Planned Parenthood v. Casey, which had reaffirmed Roe’s rule that abortion could not be banned any time before viability. The Casey decision did erase the Roe formula that set varying degrees of abortion rights in three stages of pregnancy. Instead, the Casey decision created a new legal test for anti-abortion laws: they would be struck down if they imposed an “undue burden” on the right to abortion.
One peculiar thing about the Alito majority opinion was that, even though it erased entirely the constitutional right to abortion, it appeared to assume that there would still be challenges in court to any new abortion limits or bans that already exist at the state level or may now be enacted by states.
It is difficult to know what legal arguments could be made by a woman or her doctor or an abortion clinic if there is no right to enforce against state controls. Even so, the new ruling told lower courts that, from this point forward, they are to judge the validity of any abortion law by applying the so-called “rational basis” test.
Here is how Alito put it: “A law regulating abortion, like other health and welfare law, is entitled to a ‘strong presumption of validity.’…It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
As always understood and applied, the “rational basis” test is the easiest one to satisfy when a law’s constitutionality has been changed. If the legislature had any “rational” reason, or even if it only could have had such a reason whether it did or not, the law would pass the test.
Could a law banning abortion and not including an exception when the pregnancy resulted from rape or incest be challenged as “irrational”? If the law did not allow abortion if necessary to save the woman’s life be challenged as “irrational”? Could a “moment of conception” ban be challenged as “irrational” because most women do not know they are pregnant in the earliest weeks of pregnancy?
It remains to be seen just how lower courts will act when any new challenge arises to an existing or new abortion regulation.