The Supreme Court on Friday released a ruling in the case of Dobbs v. Jackson Women’s Health Organization. They have overturned Roe v Wade, which legalized abortion at the federal level. At issue in the case was whether all restrictions to abortion prior to viability are unconstitutional, or not.
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the decision reads. Justice Alito delivered the opinion, as was expected based on the May leaked draft. His issue with Roe is on constitutional grounds, saying that the 1973 decision rook away the rights of each state to make the determination for themselves.
The decision, a draft of which was leaked in late April, essentially overturns the landmark 1973 ruling in Roe v Wade that federally legalized abortion. Now, the decision on whether or not abortion is legal returns to the states.
Justice Samuel Alito delivered the opinion, and was joined by Gorsuch, Kavanaugh, Barrett and Thomas. In the dissent were Breyer, Sotomayor, and Kagan.
The decision reads that:
“The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. See 410 U. S., at 152–153. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications.”
The Court further examined “whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’”
They found that “the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for ‘liberty’—has long been controversial.”
In reverting the decision on the legality of abortion back to the states, the Court writes that “The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
The Court also holds up the the validity of a “potential life,” saying, in their overturning of Roe and Casey, that “Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”
“Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.”
For Alito, viability was a primary concern. He noted that under the previous ruling, “each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve ‘viability,’ i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting ‘potential life,’ it found that this interest could not justify any restriction on pre- viability abortions.”
The medical science has accelerated to the point where even babies born at a mere 21 weeks gestation are able to survive with medical help.
Alito cited the Mississippi law that was challenged, which read “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
He noted that there was backup for this decision by Mississippi lawmakers, including that “at the time of enactment, only six countries besides the United States ‘permit nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.’” Those lawmakers dug into the gestation process, and the growth of the unborn baby, determining that terminating pregnancy at even 12 weeks “for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
On the dissent to this opinion, “The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition.’”
Dobbs v. Jackson Women’s Health Organization tested a Mississippi law that banned most abortions after 15 weeks of pregnancy. Lower courts prevented the law from being enacted, as it was directly contrary to a previous ruling in Planned Parenthood v. Casey that stopped states from banning abortion within the first 24 weeks of gestation.
Several states have said that they would become sanctuary states for abortion access, California, New York, New Jersey, Connecticut and Colorado among them. Many states already have abortion on demand, such as Oregon, up into the third trimester. The Biden administration has promised to try and counteract any laws opposing abortion.
Other states have enacted laws that drastically restrict abortion, such as Texas, Mississippi, Oklahoma, and others.
The Centers for Disease Control report that there were 629,898 abortions in the United States in 2019, but they rely on voluntary reporting data, and California, Maryland, and New Hampshire did not report their totals. This number is higher than the voluntarily reported 619,591 in 2018, and 612,719 abortions in 2017.
The Guttmacher Institute compiles its data by contacting every abortion provider in the country and uses health department data, and found that there were 862,320 abortions in 2017.
Neither of these numbers factor in the use of abortion pulls that were obtained outside of known health providers.
Abortion activists and militants have issued statements that they would be actively and violently protesting the ruling the night the decision drops, calling for a “Night of Rage.” The homes of Supreme Court justices have been protested.
**By Libby Emons