In 1973, the Supreme Court of the United States made a landmark decision when it ruled in Roe v. Wade that the Constitution generally protects the liberty of a pregnant woman to choose to have an abortion. This fundamentally struck down several federal and state abortion laws in the U.S. while fueling a longstanding debate about the extent of legal abortion.
Note that the particular case was brought by “Jane Roe” or Norma McCorvey. She became pregnant with her third child in 1969 and wanted an abortion. She lived in Texas where abortion was illegal except when it is critical to saving the life of a pregnant woman.
McCorvey sought the assistance of lawyers Sarah Weddington and Linda Coffee. The two lawyers filed a lawsuit on behalf of McCorvey in a U.S. court against the local district attorney of Texas Henry Wade. Their argument center on a general assertion that the abortion laws in Texas were unconstitutional.
The U.S. District Court agreed with McCorvey. Several appeals were made until the U.S. Supreme Court ruled with finality in 1973 that the Texas abortion statutes were unconstitutional. However, in 2022, the same Supreme Court overturned the decision.
Overturning Roe v. Wade: The Decision of the U.S. Supreme Court
Background of the 1937 Court Decision
Why exactly did the United States Supreme Court decide against and overturn Roe v. Wade? How exactly did the Roe v. Wade case got brought up in the highest court of the United States once again? Answering these questions first requires revisiting and reexploring the details and explanations of the earlier 1973 decision of the same court.
Note that the 1973 ruling was a 7-2 decision based on an assertion that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution guarantees the fundamental right to privacy. This right extends to the right of pregnant women to an abortion.
However, the Supreme Court also held that the right to abortion is not absolute. It maintained that this right must be balanced with the role and interests of the government in protecting the health of women and prenatal life. Furthermore, to resolve this, the Court also introduced the trimester timetable that provided a framework for abortion regulations.
The trimester timetable prescribes that the government cannot regulate abortion or prohibit pregnant women from getting an abortion during the first trimester of their pregnancy except for requiring the procedure to be performed by a licensed physician.
For the second trimester, the government could regulate abortion for the sole purpose of protecting maternal health and not fetal life. The Court also introduced “ fetal viability” as a concept that applies in the third trimester and even in the last few weeks of the second trimester. During which, abortion could be regulated and even prohibited.
Challenges from Anti-Abortion Activists
Roe v. Wade was a landmark case that challenged existing abortion laws across different states and stirred a heated debate between pro-life and pro-choice factions in the U.S. Numerous politicians and activists sought to overrule the decision since 1973. One of which was the case involving Planned Parenthood and Robert Casey et al.
The Planned Parenthood v. Casey case arose from the challenges to five provisions of the Pennsylvania Abortion Control Act of 1982. The plaintiffs argued in the District Court that these provisions were unconstitutional under Roe v. Wade.
Note that the case went all the way up to the Third Circuit Court of Appeals and further to the Supreme Court. Nonetheless, in 1992, the Court reaffirmed the constitutional right of pregnant women to abortion. However, it overruled the trimester timetable of Roe v. Wade and the “strict scrutiny” standard in favor of the “undue burden” test.
Roe v. Wade continues to resurface in other court cases and judicial developments involving not only abortion but also privacy rights. The most notable case involving abortion rights is the highly publicized Dobbs v. Jackson Women’s Health Organization.
The case emerged from the challenges to the constitutionality of a Mississippi state law passed in 2018 that banned abortion procedures after the first 15 weeks of pregnancy. The main arguments were founded on the rulings made in Roe v. Wade, as well as the ruling in Planned Parenthood v. Casey that prevented banning abortion before fetal viability.
2022 Dobbs Landmark Court Decision
Nevertheless, in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court ruled in 2022 that the U.S. Constitution “does not confer a right to abortion” and that “the authority to regulate abortion is returned to the people and their elected representatives,” thus effectively overturning Roe v. Wade and Planned Parenthood v. Casey.
Associate Justice Samuel Alito penned the majority opinion. He wrote, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.”
It is important to highlight the fact that the Supreme Court voted 6-3 to overturn the 15-week abortion law of Mississippi which was central to Dobbs v. Jackson. Alito argued that ruling it constitutional would compel the Court to deliberate decide the constitutionality of other state laws with different timetables for obtaining an abortion.
Chief Justice John Roberts concurred that he would have stopped at the specific Mississippi abortion law rather than overturning Roe v. Wade. However, Alito rejected any constitutional grounds for upholding a “reasonable opportunity” to obtain an abortion.
The Supreme Court decision also added that the adherents of the Roe v. Wade ruling failed to demonstrate that the highest court in the U.S. has the power to decide how to regulate abortion. Hence, to resolve what it deemed an egregious interpretation of the Fourteenth Amendment, the Court returned the power to decide the legality of abortion to the states.
Fundamentally, to explain why the U.S. Supreme Court overturned Roe v. Wade through its Dobbs v. Jackson ruling, the Court argued that it does not have the power to regulate abortion, thus keeping its hands off the specific abortion laws of states.
The Court also highlights what it deems as a fact that the U.S. Constitution makes no reference to abortion or that there are specific abortion rights directly and implicitly protected by any constitutional provision. It deemed the interpretation of the Due Process Clause of the Fourteenth Amendment in Roe v. Wade exceptionally weak.
Dissents and Public Outcry: Reactions to the Overturning Roe v. Wade
One of the controversial concurrences in the Dobbs case came from Associate Justice Clarence Thomas. His concurring opinion argued that the Supreme Court should reconsider all of its substantive due process precedents. These include landmark rulings from Griswold v. Connecticut, Obergefell v. Hodges, and Lawrence v. Texas.
Griswold v. Connecticut protected the right of married couples to buy and use contraceptives. The 2003 Lawrence v. Texas ruling banned laws against sodomy while the 2015 Obergefell v. Hodges ruling made same-sex marriage a constitutionally protected right.
Associate Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor penned the dissenting opinion in Dobbs v. Jackson. They wrote and argued, “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”
Elsewhere, opinions and strong sentiments from left-leaning and progressive politicians and rights groups, as well as celebrities and the general public flooded the internet after the Supreme Court announced its decision to overturn Roe v. Wade.
United States President Joe Biden reminded that Roe v. Wade was an important precedent that protected the right of women to choose and their right to make personal decisions with their doctors. Furthermore, he added that the landmark court ruling reaffirmed the basic principles of equality and reaffirmed the fundamental right to privacy.
Adherents of pro-choice and the rights of women reiterated the importance of promoting and protecting abortion rights, particularly the right of women to decide what they want to do with their bodies and their right to access safe abortion procedures.