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Supreme Court overrules Roe v. Wade

A Mississippi law that would ban abortions at just 15 weeks brought down a nearly 50-year-precedent protecting abortions across the country. 

WASHINGTON (CN) — Striking down the federal right to abortion, the Supreme Court overruled its landmark precedent in a 6-3 split on Friday. 

“We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote for the majority, referring both to Roe v. Wade and Planned Parenthood v. Casey, the case that reaffirmed abortion rights in 1992.

Key to the court's ruling Friday was its determination that the Constitution does not reference abortion, and that the right to abortion is also not protected in either the Due Process Clause or the 14th Amendment. Alito said overruling Roe follows the Constitution by returning the issue to the states. 

“​​Roe was egregiously wrong from the start,” he wrote. “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.” 

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented in a rare co-signed opinion. 

“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent," the three justices wrote.

The dissent says women’s rights will suffer because of Friday's decision. 

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the Democrat-appointed justices wrote. 

Roe v. Wade was decided in 1973 but saw its biggest challenge in decades when Mississippi tried to ban all abortions after 15 weeks. With a conservative supermajority on the Supreme Court following the Trump administration, reproductive rights advocates worried the conservative legal movement would finally succeed in their quest to squash abortion rights across the country. 

The last abortion provider in Mississippi, Jackson Women’s Health Organization, has been fighting Mississippi’s Gestational Age Act since Republican Governor Phill Bryant signed the bill into law in 2018. A federal judge found the law unconstitutional, permanently enjoined it and called its defense in court a waste of taxpayer dollars. Abortion providers prevailed again when the Fifth Circuit affirmed in 2019, setting up a high-stakes battle at the high court

The high court’s reversal of that decision looked to be a foregone conclusion, however, after it considered the case at oral arguments in December. Chief Justice John Roberts was the only conservative who seemed to want to salvage the 1973 precedent in favor of a more incremental change. The case demonstrated the power of the conservative supermajority that does not need Roberts’ influence to form a majority. 

Solidifying expectations, an unprecedented leak of a draft version of Alito’s decision early last month sparked outrage and protests across the country.

Mississippi asked the court to overturn the precedent in July of 2021 but notably made no such request when it petitioned for the writ of certiorari June 2020. Between these two dates, Justice Ruth Bader Ginsburg died and Justice Amy Coney Barrett was nominated and confirmed. Justice Sonia Sotomayor predicted at oral arguments five months later that overruling Roe would compromise the court's standing as an impartial body.

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts,” the Obama appointee asked. “I don't see how it is possible."

In the final opinion, Alito calls it time to “set the record straight” on Roe’s historical analysis, which was used to affirm the right to abortion in Casey. He points to common-law authorities from the 17th century when abortion was considered criminal. 

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"Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State," Alito wrote (emphasis in original). "At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages."

Alito cites historical analysis to say abortion is not a right, then historical examples where it was a crime. 

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” 

Some rights advocates have worried that the destruction of Roe could endanger other rights. Justice Clarence Thomas directly addresses this in a concurring opinion Friday, suggesting the court reconsider cases concerning birth control, same-sex marriage and anti-sodomy laws. 

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” 

The majority opinion also addresses other rights based on the same foundations as Roe. Alito said Casey does not rely on sound precedent, citing a number of cases involving the right to autonomy like Loving v. Virginia and Griswold v. Connecticut

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” Alito wrote. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.” 

The majority says Roe and Casey are distinct from those cases, however, in that they concern the life of an “unborn human being.” Alito said the ruling does not undermine them in any way. 

Nancy Northup, president and CEO of the Center for Reproductive Rights, described Friday's reversal as a wrecking ball.

“The Court’s opinion delivers a wrecking ball to the constitutional right to abortion, destroying the protections of Roe v. Wade, and utterly disregarding the one in four women in America who make the decision to end a pregnancy,” Northup said in a statement. 

The American Civil Liberties Union said overruling Roe is just the beginning, predicting that anti-abortion politicians will start to enforce criminal bans on abortion. Anthony D. Romero, executive director of the ACLU, expects half of the states across the country to ban abortion in the wake of this ruling, which he called a “brazen assault on the fundamental rights of women.”

“The Supreme Court has just plunged this country and itself into a historic crisis, one that will reverberate far beyond the ability to get an abortion,” Romero said in a statement. “Forcing people to carry pregnancies against their will is just the beginning. The same politicians seeking to control the bodies of women and pregnant people will stop at nothing to challenge our right to use birth control, the right to marry whom you love, and even the right to vote. No right or liberty is secure in the face of a Supreme Court that would reverse Roe.” 

Mississippi’s Attorney General Lynn Fitch lauded the reversal as a win for women, children and the court itself. 

“Today marks a new era in American history — and a great day for the American people,” Fitch said in a statement. “Roe v. Wade is now behind us, consigned to the list of infamous cases that collapsed under the weight of their errors. This decision is a victory not only for women and children, but for the Court itself. I commend the Court for restoring constitutional principle and returning this important issue to the American people.” 

Speaker of the House Nancy Pelosi said American women today have less freedom than their mothers because of the “Republican-controlled Supreme Court.” Pelosi said the ruling achieves the Republican Party’s “dark and extreme goal” of taking away women’s rights to make their own reproductive health decisions. 

“This cruel ruling is outrageous and heart-wrenching,” Pelosi said. “But make no mistake: the rights of women and all Americans are on the ballot this November.”

For the Republicans meanwhile, Senate Minority Leader Mitch McConnell called the ruling courageous and correct. 

“This is an historic victory for the Constitution and for the most vulnerable in our society,” McConnell said in a statement. 

Comparing Roe to Plessy v. Ferguson, McConnell said the court’s ruling corrected a moral error. 

“The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson,” McConnell said. “The Justices applied the Constitution. They carefully weighed the complex factors regarding precedent. The Court overturned mistaken rulings that even liberals have long admitted were incoherent, restoring the separation of powers. I commend the Court for its impartiality in the face of attempted intimidation.” 

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