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Supreme Court gives states green light to ban abortion, overturning Roe

The bombshell decision is set to upend races across the country as governors, attorneys general, and other state and local leaders gain new powers to decide when abortion will be permitted.

By JOSH GERSTEIN and ALICE MIRANDA OLLSTEIN

The Supreme Court on Friday revoked the constitutional right to an abortion that has been in place for half a century — overturning Roe v. Wade on a 5-4 vote, clearing the way for dozens of states to swiftly ban the procedure and throwing the country into uncharted political, legal, social and medical territory.

The bombshell decision is set to upend elections across the country as governors, attorneys general and other state and local leaders gain new powers to decide when abortion will be permitted, if at all, and who should be prosecuted and potentially incarcerated when bans take effect.

The high court’s vote to overturn nearly five decades of court rulings upholding a right to end a pregnancy won the support of five of the court’s six conservative justices while Chief Justice John Roberts and the court’s three liberal justices opposed overruling Roe.

The majority opinion, authored by Justice Samuel Alito, hewed closely to the draft version obtained exclusively by POLITICO and published in early May.

In its official opinion, the court’s conservative majority went beyond simply resolving the case before them — Mississippi’s near-ban on abortion at 15 weeks of pregnancy — and instead overturned both Roe v. Wade and Planned Parenthood v. Casey, long-standing precedents that barred states from banning abortion before the point of fetal viability.

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote. “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

As the draft previewed, Alito argued that history demonstrates no tradition in the U.S. of a right to abortion and the absence of such protections undermines the Supreme Court’s conclusion 49 years ago that abortion rights were implicit in a constitutional right to privacy.

However, the court’s five-justice majority also cautioned that their momentous decision to retreat from Roe does not mean other court decisions grounded in privacy rights are in jeopardy.

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.

The court’s liberal wing, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, joined together in a single fiery dissent warning that the action by the court’s majority was deeply unwise and disruptive.

“Withdrawing a woman’s right to choose whether to continue a pregnancy does not mean that no choice is being made. It means that a majority of today’s Court has wrenched this choice from women and given it to the States,” the Democratic-appointed justices wrote. “Women have relied on Roe and Casey in this way for 50 years. Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity will be immense.”

The court’s liberals also predicted that the Republican-appointed majority’s willingness to overrule a nearly half century old precedent bodes ill for other decisions regularly relied on by Americans and for respect for the legal system.

“It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law,” Breyer, Sotomayor and Kagan wrote.

In a solo concurring opinion, Roberts staked out a middle ground position, arguing that the court had no need to overrule Roe in its entirety and should have simply upheld Mississippi’s 15-week limit while leaving questions about the constitutionality of tighter restrictions to future cases.

“I am not sure…that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks,” Roberts wrote. “I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.”

However, Roberts was unable to win over any other justice to that position, leaving his analysis of the legal issues as little more than a historical footnote.

Justice Brett Kavanaugh joined the majority opinion overruling Roe, but also wrote his own concurring opinion that seemed to caution against use of Friday’s decision to undermine other rights not mentioned in the Constitution.

“The text of the Constitution does not refer to or encompass abortion,” Kavanaugh wrote. “To be sure, this Court has held that the Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition. ... On the issue of abortion, the Constitution is neither pro-life nor pro-choice.”

The majority ruling represents a triumph for more than four decades of organizing, fundraising and strategizing by conservative legal activists intent on transforming the federal judiciary and correcting what they viewed as liberal excesses by judges and justices in the 1960s and 1970s.

Leaders and founders of right-leaning groups such as the Federalist Society enjoyed considerable sway over Supreme Court appointments by the last several Republican presidents, culminating in President Donald Trump essentially outsourcing the search for Supreme Court nominees to such groups.

The ruling is also a stark measure of the impact a single president can have on the nation’s highest court. Three of the five justices who joined in the decision overturning Roe — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were appointed by Trump. Kavanaugh and Barrett both replaced justices who had backed abortion rights.

The political consequences of the decision are likely to be significant, with the nation receiving a very concrete lesson in how elections — particularly for the Senate and the White House — can lead to major shifts in the judiciary and that justices can not only expand rights, but contract them as well.

Democrats expect the high-profile defeat for abortion rights and the ensuing consequences to motivate women and liberal voters in the upcoming midterm elections and beyond. Most immediately, the issue could provide a boost to Democratic candidates in this November’s contest, where Republicans are expected to enjoy a heavy advantage in House and Senate races.

However, given the rarity of Supreme Court decisions effectively stripping established individual rights, it’s hard to assess whether the high court will finally become the kind of catalyzing issue for Democrats that it has long been for Republicans.

While there are some hints of electoral consequences related to past changes in abortion laws at the state level, sharply conservative decisions from the Supreme Court in the past couple of decades in areas like voting rights and campaign finance don’t seem to have done much to affect the decisions of individual voters.

What seems more certain is that the sweeping abortion ruling will directly impact tens of millions of people in the short term, with further fallout expected in the months and years ahead.

Twenty-two states are poised to immediately ban the procedure in most or all circumstances, either because they have abortion bans still on their books from before Roe was decided in 1973 or because they’ve passed so-called trigger laws since then mandating that abortion be outlawed if and when Roe is overturned.

Many of those state bans include criminal penalties that — depending on how state officials choose to enforce them — mean abortion providers and even patients could face incarceration.

Other states are poised to enact or expand restrictions that fall short of full prohibitions on abortion but could still put it out of reach for many people, including bans on the procedure after a certain point in pregnancy, bans based on the patient’s reason for the procedure, curbs on the distribution of abortion pills, mandatory waiting periods, and more.

Conservative states are likely to pass more of these laws in the months ahead, and several have already raised the prospect of calling a special session to do so as early as this summer. Lawsuits are also playing out in several states — including Michigan and Montana — that will determine whether or not abortion remains accessible there.

Some progressive states, meanwhile, have rushed to enact new legal protections for the procedure, create new financial supports both for low-income people within the state and those who may travel there from other parts of the country, and expand the abortion provider workforce ahead of what they expect will be a flood of patients.

Abortion rights advocates stress, however, that many people will not be able to travel out of state to end a pregnancy because they can’t afford to do so, can’t find child care, can’t take time off work or face other barriers, such as their disability or immigration status.

One study predicts that between about 94,000 and 144,000 people who want abortions won’t be able to obtain one during the first year after Roe is overturned. That would represent roughly a 15 percent decline in the number of abortions reported in the U.S. in 2020. Maternal mortality will go up by at least 20 percent as a result, another study said.

“You can’t just increase the birth rate by that much and think there won’t be consequences,” warned Lisa Harris, an abortion provider and professor at the University of Michigan’s medical school. “The people with the most resources will find a way to end their pregnancies. But the people with the fewest resources are also the same people with serious health complications. These are the sickest people who will need the most care.”