Everything you need to know about Roe v. Wade
Justice Alito wrote that the decision wouldn’t impact precedents about same-sex relationships and contraception. But not everyone is on the same page, and one of those opinions is tucked away in the SCOTUS decision.
WICHITA FALLS, Texas (KAUZ) - Roe v. Wade has been a mainstay in American law since 1973. But despite most people knowing its name, few understand the premise it’s based on -- and even fewer know what’s going to happen now that it’s gone.
Read on for an explainer of the original case, the Friday announcement that sparked both protests and celebrations across the nation, and the opinion tucked into the 213-page decision that could potentially turn the U.S. legal system on its head.
What is Roe v. Wade?
Roe v. Wade is the name of the lawsuit that led to the landmark 1973 U.S. Supreme Court decision that established the right to abortion in the United States. It held that women in the U.S. have a fundamental right to choose whether to have abortions without excessive government restriction, and struck down a Texas abortion ban as unconstitutional.
What was the context of the time?
At the time of Roe v. Wade, elective abortion was largely illegal throughout the country. 30 states prohibited abortion without exception, compared to three states allowing only residents to obtain abortions and New York allowing abortions overall, according to the Guttmacher Policy Review.
Moreover, women had only just obtained wider access to contraceptives. The Supreme Court ruled in the 1965 Griswold v. Connecticut case that a state ban on distributing contraceptives to married couples violated the right to marital privacy; the 1972 Eisenstadt decision expanded that right by allowing unmarried people to have contraceptives on the same basis as their married counterparts.
What was the context of the case itself?
The woman known as “Jane Roe” in court documents was actually Norma McCorvey, a Texas woman in her early 20s. McCorvey was unmarried, unemployed and pregnant for the third time. The previous two children had been given up for adoption, and she wanted to pursue an abortion -- but Texas law said the procedure was only legal if it would save the mother’s life.
In 1970, McCorvey’s attorneys filed a lawsuit against Henry Wade, the district attorney for the county where McCorvey lived. A Texas district court ruled the state’s abortion ban was illegal because it violated a constitutional right to privacy, and the case was eventually appealed up to the Supreme Court.
In the meantime, McCorvey gave birth to a child who was later adopted. In her autobiography, she would later recall drinking wine and smoking “dope” during the pregnancy to forget about her situation.
What was the Supreme Court’s decision? What does a right to privacy even mean?
The conservative-leaning Court issued a 7-2 decision in favor of “Jane Roe,” with the majority opinion finding an absolute right to privacy during the first trimester. The decision specifically struck down a Texas statute banning abortion saying a woman’s right to an abortion was implicit in her right to privacy under the Fourteenth Amendment. In other words, abortion could be considered a fundamental right despite not being explicitly mentioned in Constitution.
The case hinged on a “right to privacy,” which can make people think of keeping personal business out of the public eye. However, in the context of Roe v. Wade, the right to privacy is actually “the right against undue government intrusion into fundamental personal issues and decisions.” In the first three months of pregnancy, a woman’s decision to have an abortion was to be left between her and her doctor, with no government interference.
Why do people keep talking about “Casey?”
A second landmark case about abortion was Planned Parenthood v. Casey in 1992. The ruling upheld the “essential holding” of Roe v. Wade: that the Due Process Clause of the 14th Amendment -- which says the government can’t arbitrarily deprive its citizens of “life, liberty, or property” without due process of law -- protected a woman’s right to have an abortion before fetal viability.
The case changed how the law looked at pregnancy. While Roe had a trimester framework, saying a woman had a right to an abortion in the first trimester, Casey replaced this with a standard of fetal viability -- the ability of a fetus to survive outside of the womb, which doctors generally agree that this takes place around 23-24 weeks old. The viability analysis allowed states to implement abortion restrictions during the first trimester of pregnancy, and is part of the reason Texas and other states were able to pass legislation like the Heartbeat Bill.
Casey also replaced the “strict scrutiny” standard of review. Roe had said that as a fundamental right, there must be a “compelling state interest” in regulating abortion, and listed those interests as protecting the mother’s health and “the potentiality of human life.” Casey abandoned this for an undue burden standard, which said abortion restrictions were unconstitutional if they were enacted to put “substantial” obstacles in the way of a woman seeking the procedure.
What was the 2022 case that overturned Roe v. Wade?
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court looked at the constitutionality of Mississippi’s ban on abortion after 15 weeks of pregnancy. The Roe and Casey precedents would only allow states to regulate abortion after fetal viability (around 24 weeks).
A draft majority opinion by Justice Samuel Alito was leaked by Politico in May of 2022, causing uproar and fueling speculation that Roe v. Wade would soon be overturned.
Why did the Supreme Court overturn it? What was their reasoning?
The court held that 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.” But why?
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in his majority opinion. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Essentially, the rationale appears to be that Roe v. Wade was poorly decided and that Casey, the case that followed and affirmed Roe, didn’t investigate the constitutional question at hand but instead affirmed it simply because it was precedent.
Alito stated that the Constitution makes no reference to abortion, and that while the Due Process Clause of the 14th Amendment has been held to guarantee other rights not explicitly mentioned, those rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” He further argued that abortion was different from other privacy rights because it “destroys what those decisions call ‘potential life.’” Essentially, the opinion stated that because the Constitution doesn’t explicitly give people the right to an abortion, it’s an issue each state can legislate on its own.
Were there only two sides in the opinion? For and against?
While Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan gave predictably scathing dissent, there was another notable opinion that stood out from the others.
Chief Justice John Roberts concurred only in the judgement of the case, which meant he agreed with the majority opinion but not the reasoning behind it. Roberts said that he would have upheld Mississippi’s law banning abortions after 15 weeks, but practiced judicial restraint and not overturned Roe.
“The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” he wrote.
In essence, Roberts took issue with the line of viability in Roe v. Wade (saying it ”is and always has been completely unreasoned”), but said overturning Roe and decades of precedent was unnecessary when it came to actually deciding the Dobbs case.
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases,” he wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
Will this impact other rights, like same-sex marriage and contraception?
This question is up for debate. The dissenting justices expressed concern that the decision would call into question three cases that defined same-sex marriage, homosexuality and contraception. Alito expressly denied this in the majority opinion, opining that the dissent could have been “designed to stoke unfounded fear that our decision will imperil those other rights.”
The problem is, not everyone feels the same way. A large part of the argument goes back to the Due Process Clause and how it can or cannot guarantee rights, and Justice Clarence Thomas is well known for his opinions on the matter.
“The Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness,” he wrote in 2012.
Thomas is one of many who understand due process as procedure rather than substance. In other words, he believes the Due Process Clause means the government has to operate within the law and provide fair procedures, like a fair trial with an independent decisionmaker -- not that it guarantees rights unknown.
“Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion,” wrote Thomas in his concurring opinion.
And while Thomas explicitly agreed with Alito’s assertion that the Dobbs decision won’t impact other precedents and rights, that agreement was only because “no party has asked us to decide whether our entire Fourteenth Amendment jurisprudence must be preserved or revised.”
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” wrote Thomas. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
For reference, Griswold was the aforementioned case that allowed for the distribution of contraception; Lawrence v. Texas decriminalized same-sex intimacy; and Obergefell v. Hodges legalized same-sex marriage.
Many social media users pointed out that Thomas, a Black man married to a white woman, did not suggest reconsidering Loving v. Virginia, a landmark 1967 decision that stated banning interracial marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
So, to recap: Justice Clarence Thomas is saying he would be open to revisiting the entire area of law surrounding the Fourteenth Amendment should a relevant party request it, and in doing so, reevaluate the landmark decisions around contraceptives and same-sex relationships.
What comes next?
26 states are expected to ban abortion in the next few months, according to the Guttmacher Policy Review. 13 of those have laws in place designed to be “triggered” whenever Roe v. Wade was overturned. In Texas, a trigger law enacted in 2019 makes abortion a felony unless the mother’s life is in danger. It’s not expected to take effect until 30 days after a formal judgment is issued by the court, according to state Attorney General Ken Paxton.
Despite this, clinics throughout the state announced they were pausing or halting abortion services immediately after the SCOTUS ruling on Friday. When asked why, many said they were advised to pause services by legal counsel because of the state abortion laws that were in place before Roe v. Wade.
Paxton clarified that Texas is one of the states who never repealed laws from the pre-Roe era, saying in a press release that some prosecutors may choose to immediately hold abortion providers liable based on violations of laws predating Roe that remained on the books. He said clinics could technically face criminal charges starting Friday, because while these laws couldn’t be enforced while Roe v. Wade remained active, they are still a part of Texas law.
The Guttmacher Institute has created an interactive map on abortion policies and access in the United States.
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