Life Wins: Supreme Court Strikes Down Roe v. Wade

Senate Minority Leader Mitch McConnell (R., Ky.) and Justice Amy Coney Barrett / Getty Images
June 24, 2022

The Supreme Court overturned its landmark Roe v. Wade decision Friday, ending constitutional protection for abortion.

The historic decision returns regulation of the procedure to the states, many of which have amended their laws in recent months in anticipation of the decision. Justice Samuel Alito delivered the majority opinion for five justices over dissents from the liberal trio. Chief Justice John Roberts wrote a separate opinion declining to overturn Roe but advancing new restrictions on abortion.

"Abortion presents a profound moral question," the decision reads. "The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

Friday’s result is the end of one of the most extraordinary cases in the Court’s history. The ruling appears to closely track a draft majority opinion that leaked from the Court in May, an unprecedented and once-unthinkable breach of Court customs. The ensuing weeks saw a rise in threats against members of the Court and the attempted assassination of Justice Brett Kavanaugh, thought to hold the swing vote in the case.

Yet for all the drama of recent months, overturning Roe may not prove to be a tumultuous political event. With inflation soaring and a recession looming, abortion is not registering as a top concern for voters. Legislative action is not expected from Congress, where Democratic majorities in both houses are too slim for drastic measures. And while President Joe Biden is expected to counter the ruling via executive action, the options available to him are modest, such as relaxing regulations governing abortion pills.

The president acknowledged that his options are limited in a statement Friday calling on voters to elect pro-abortion lawmakers this fall. The president also urged demonstrators to exercise restraint when protesting in the coming days.

"I call on all people … to keep all protests peaceful. No intimidation. Violence is never acceptable. Threats and intimidation are not speech," Biden said.

Left-wing groups behind demonstrations at the homes of justices vowed to foment a "night of rage" following Friday’s decision. Those threats track a Homeland Security Department warning about targeted violence against justices, clergy, and healthcare providers following the leak of a draft majority opinion in Friday’s case. A gunman was arrested near Kavanaugh’s home on June 8.

There have been almost 50 instances of violence, vandalism, or intimidation at pro-life clinics and houses of worship, according to a June 16 report from Susan B. Anthony Pro-Life America. Some illegal acts have targeted the Court itself. The radical progressive group #ShutdownDC blocked the Court’s vehicle entrances for several hours on Monday June 13, hoping to keep personnel from the building and "expand the current political crisis."

The decision immediately affects the legal status of abortion across the country. Thirteen states have "trigger bans" in place, which will take effect in a matter of days or weeks. The largest of those 13 states is Texas, where legal abortions declined by as much as 50 percent following enactment of a fetal heartbeat law in 2021. Another 13 states have pre-Roe bans on abortion that were never taken off the books, or restrictions on the procedure following a certain gestational age.

A majority of the states—26 in total—urged the justices to overturn Roe in amicus briefs filed in Friday’s case.

The Constitution protects certain rights not mentioned in the text, provided they are deeply rooted in the tradition of the nation. But there is no such tradition respecting abortion, the majority said Tuesday. Alito’s opinion includes a thorough survey of English, Founding-era, and 19th century laws and found that "prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973," the year Roe was decided. That history demonstrates abortion is not among the "unenumerated" rights the Constitution protects, the opinion states.

Left-wing critics of the leaked majority opinion warned it will imperil other personal autonomy landmarks, such as the right to contraception and same-sex marriage. Alito distinguished Friday’s ruling from those decisions. Abortion is different, he said, because it involves a defenseless third party.

"None of the other decisions … involved the critical moral question posed by abortion," he wrote. "They are therefore inapposite."

Friday’s decision is a testament to the fortitude of the Court’s conservative majority. The opinion contains only a few minor changes compared to the draft that leaked in May. Targeted demonstrations and grave security threats did not affect the outcome or the substance of the ruling.

As states pass new laws governing access to abortion, lawfare among pro-life and pro-abortion states will eventually reach the Supreme Court. Kavanaugh, likely to be a decisive player in those disputes, staked a pair of important positions in a separate opinion. He said a state cannot stop its citizens from traveling to another state to terminate a pregnancy. And he warned that the states cannot punish physicians for abortions performed before Friday’s ruling.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote a joint dissent that pointedly needled former president Donald Trump’s three appointees. They said the law should not change with the composition of the Court. And they lamented, quoting a prior dissent, "that so few have so quickly changed so much."

"No one should be confident that this majority is done with its work," they wrote.

The case is No. 19-1392 Dobbs v. Jackson Women’s Health Center.

Update 1:45 p.m.: This piece has been updated with additional information.