In early May, leaked Supreme Court documents took the United States media by storm and exposed the American public to judicial intentions of overturning the landmark case Roe v Wade. Just shy of two months later, the Court struck down their 1973 opinion, effectively nullifying this 49-year-old landmark abortion ruling. And as of June 24, 2022, abortion rights, long held as a cornerstone of birthing people’s reproductive freedom, are no longer protected under the federal law.
“Today is a… very solemn moment. Today, the Supreme Court of the United States expressly took away a constitutional right from the American people.” — remarks by President Joe Biden regarding the overturning of Roe.
Who Was “Roe”?
Passed January 22, 1973, Roe v Wade marked a watershed in reproductive history by upholding the constitutional right to obtain an abortion. The opinion follows the story of Norma McCorvey, who was anonymized as “Jane Roe,” and her opposition, the district attorney who enforced abortion laws in Texas, Henry Wade.
McCorvey was just 21-years old in late 1969 when she became pregnant for the third time. Earlier, due to struggles with substance abuse and a physically abusive marriage that ended in a divorce, her first child was removed from her custody and her second was put up for adoption. This time, McCorvey wanted an abortion.
McCorvey’s hands were tied, however. Being a Texan meant that her state permitted an abortion if and only if it her health was on the line. And, it was financially implausible for her to travel out of state—or even to use illegal means—to abort the fetus. Being pregnant itself limited working opportunities, so she couldn’t try to scrape together the funds for an illegal or out-of-state abortion. “No one wanted to hire a pregnant woman,” McCorvey said. “I felt there was no one in the world who could help me.” Out of options, McCorvey sought to take her case to the justice system.
Her case fell to lawyers Sarah Weddington and Linda Coffee. “We pled it from every angle we could,” remembers Weddington, “including using the 9th and the 14th amendments.” Ultimately, Roe drew in backing from not only the 9th and 14th amendments, but the 1st, 4th, and 5th as well. Considered together, it came down to protecting what Americans choose to do of their own volition—and doing those things without having a prying government trying to regulate their actions.
When the case reached the Supreme Court in December of 1971, Weddington and Coffee had successfully enlarged their scope to argue over an American’s constitutional right to privacy. From October 1972 to January 1973, court justices evaluated McCorvey “Roe”’s case, and finally, just over three years after McCorvey had become pregnant for the third time, a 7-to-2 majority opinion legalized abortion in the United States.
In 1992, Planned Parenthood v Casey affirmed Roe and also banned “undue burdens” on abortions.
Dobbs v Jackson Women’s Health Organization: The Case at Hand
So what caused Roe v Wade to come under such direct legal fire in the recent months? The immediate answer comes from a culmination of a three-year-long legal battle in Mississippi, but it’s important to note that numerous other Republican-dominated states have been attempting to pass laws that contradicted Roe’s protection of abortion for years.
In December of 2021, a stagnant Mississippi law was presented to the Supreme Court. The law, proposed in 2018 by a Republican-dominated legislature, would ban abortions that are beyond the 15-week gestational period—or, in other words, if the person has been pregnant for more than 15 weeks–with the claim that the fetus has passed significant physiological milestones by this time. In opposition, the Jackson Women’s Health Organization gave evidence disproving this claim. Both local and lower federal appeal courts sided with the organization.
Centered in a cheery pink building, the Jackson Women’s Health Organization is the only abortion clinic in the state of Mississippi.
Finally, in mid-2021, with a new conservative majority due to the nomination of Justice Amy Coney Barrett in place of late Justice Ruth Badger Ginsburg, the Supreme Court agreed to hear Mississippi’s case. Thus the case was named Dobbs v. Jackson Women’s Health Organization and came under the scrutiny of the highest court, with petitioner Thomas E Dobbs, Mississippi’s state health officer, requesting the Court to overrule both Roe and Casey.
Former president Trump’s appointment of Justice Barrett marked an important conservative-liberal spectrum shift for the Supreme Court. Even before joining the bench, Justice Barrett was an open critic of abortion.
The leaked preliminary decision in May of this year was just foreshadowing into what is now perhaps the greatest revolutionary upheaval in the modern American reproductive landscape.
Overturning the Decision
Justice Samuel Alito was appointed to Court in 1990 by former President George H. W. Bush, and is widely known for his right-wing leaning tendencies.
In the syllabus (a summary of the decision that precedes the opinion itself) of Justice Samuel Alito’s majority opinion , he outlined five factors that “weigh strongly in favor of overruling Roe and Casey.”
The first was “the nature of the Court’s error,” in which Alito deemed Roe so “egregiously wrong” that it resembled the erroneous 1896 Plessy v Ferguson, of which had legalized racial segregation. Alito then criticized the elaborate imposition of rules set on states that had no apparent grounding and that the enforcement of the rules cannot be done consistently nor predictably.
The majority (comprised by Alito along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) rooted their justification in that the Constitution did not explicitly delegate to states the power to oversee abortions, and that Roe had “arrogated” this power—that the federal government had laid claim to regulating abortion without justification.
Chief Justice John Roberts concurred and was alone in his attempt to mediate between the two sides—supporting Mississippi’s argument but not revoking Roe or Casey. The three liberal-leaning justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor soundly dissented.
”With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” writes the dissenting opinion by (from left to right) justices Breyer, Sotomayor, and Kagan in closing.
So, What Does This Mean?
Back when the draft opinion was leaked in May, a poll conducted by NPR, Marist, and PBS NewsHour revealed that 64%—the majority—of Americans did not wish to see Roe overturned. But despite which side of the abortion argument you support, it’s undeniable that the reproductive health system in the United States will be dramatically altered by this far-reaching decision.
Politico estimates that, already, 16 states have passed or will be soon passing laws to illegalize abortion (as of June 24, 2022). These states include Texas, Oklahoma, Louisiana, and Kentucky, to name a few.
On the other side of the spectrum, consistently liberal-aligned states like California are unlikely to implement new slegislation restricting abortion.
California governor Gavin Newsom’s tweet affirming abortion for
The Golden State.
It is now up to the states to decide the legality of abortion for their residents. Whether they individually choose to restrict it, penalize it, or broaden its access, a single constant is clear: the federal government no longer has jurisdiction.
But as it may be, the fight to devolve abortion is long since over. President Biden openly condemned the Supreme Court’s decision and affirmed his belief in the constitutionality of abortion. “The health and life of women in this nation are now at risk,” he said. “[Overturning Roe is] a realization of an extreme ideology and a tragic error by the Supreme Court, in my view.”
”It is unthinkable to allow complete strangers, whether individually or collectively as state legislators or others in government, to make such personal decisions for someone else.”
— Sarah Weddington
During a Time interview in 2003, Sarah Weddington was asked if she believed Roe—already under direct fire countless times since its 1973 decision—would stand for yet another 30 more years. “There’s a part of me that thinks, ‘well of course the ruling will stand because…’” she answered. “But then I have a hard time finding what comes after ‘because.’”
Nineteen years later, Weddington’s ambivalence officially manifests itself in one of the most divisive decisions to have ever graced the Supreme Court floors. And with purported claims for justices to “target” other landmark cases, of which include protecting the right to same-sex marriage, the future trajectory of the United States appears more uncertain than ever before.
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