Supreme Court overturns Roe v. Wade; states can ban abortion
Washington — Abortion is no longer a constitutional right after the U.S. Supreme Court on Friday overturned the landmark Roe v. Wade ruling from 1973, which caused restrictive laws to take effect in a quarter of the states but not immediately in Michigan.
"Roe was egregiously wrong from the start. 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 inflamed debate and deepened division," Justice Samuel Alito wrote in the opinion for the conservative court majority.
"It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."
The 6-3 decision is a seismic change that leaves a patchwork of laws nationwide, with some states continuing to protect abortion rights and potentially nearly half restricting or forbidding the procedure.
In Michigan, a 1931 abortion ban with no exceptions for rape or incestmay not be currently enforced under a state Court of Claims order, though the situation may change as legal challenges continue.
In the majority opinion, Alito reasoned that the Roe decision had been "egregiously wrong and on a collision course with the Constitution from the day it was decided." The justices are giving states the power to decide whether abortion should be legal within their borders.
Alito explained that the court found that the right to abortion is "not deeply rooted in the nation’s history and tradition," and that the 14th Amendment "clearly" does not protect the right to an abortion, as held in decades-old precedents.
The opinion echoed a leaked draft by Alito published by Politico in early May, which set off a firestorm of action on both sides of the abortion debate. Demonstrations by supporters of abortion rights unfolded across the country, including a multi-day protest in front of the Supreme Court in Washington and in cities around Michigan.
Ruling prompts demonstrations
President Joe Biden addressed the nation from the White House shortly after noon Friday, declaring it a "tragic error" and a "sad day for court and for the country."
“This decision must not be the final word,” said Biden, saying it puts women's health at risk.
The Delaware Democrat called on Congress to codify legal protections for abortion into law and urged voters to turn out in the November midterm elections, saying, “this fall, Roe is on the ballot.” He said his administration would act to protect access to medications like contraception and abortion pills.
Biden urged protests to be conducted peacefully and said violence is never acceptable.
Abortion rights supporters gathered outside the high court in Washington on Friday with posters and banners, chanting: "Legal abortion on demand!" and "The Supreme Court is illegitimate." One demonstrator wore a piece of tape over her mouth that said: "Second Class Citizen."
"Obviously, with the leaked drafts, we knew this was gonna happen. But it's still a really big blow, and it's just tragic to me that so many women in half the states are now immediately without reproductive care," said Maggie Wainwright of New York. "We're in for a very long fight, I think."
Anti-abortion protesters also turned out to celebrate with "Protection at Conception" posters and the chant: "Pro-choice, that's a lie, babies never choose to die." They also sang, "Na na na na, hey hey hey, goodbye."
“Our work has just begun. We have a lot of work to do to help these women and to protect these children,” said Cecilia Junker of Philadelphia, a Penn State University student who was outside the court with Students for Life.
“Next, this goes back to the states. We’ve got to go back (home) and go to protest at the courts and try to get people to vote pro-life because every state has different laws.”
Members of Congress soon joined the crowd, with Democrats chanting: "We will vote; we trust women."
"I'm really mad. I'm livid," said U.S. Rep. Andy Levin of Bloomfield Township, who was marching with the group. "This right-wing cabal of unelected justices ... are taking us back 50 years. The idea that my daughter will have less rights than her mother and grandmothers is outrageous, and we're not going to stand for it."
Republican U.S. Rep. Bill Huizenga of Holland also walked across the street to observe the scene outside the court.
"This is a good day, honestly, in my opinion, but this isn't the end of the struggle or debate. This is going to shift to the states," Huizenga said. "For the pro-life movement going forward, what it means is we need to continue to show love for the child, the mother and the father. That means supporting them, and it just doesn't stop at the door of the abortion center. It has to be beyond that."
What the justices said
Republican-nominated Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Alito's opinion, with Chief Justice John Roberts filing an opinion concurring in the judgment to uphold the Mississippi law at issue but disagreeing with the majority's reasoning.
"Both the court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share," Roberts wrote.
He suggested the majority could and should have issued a narrower opinion that wouldn't have overruled Roe and the 1992 case Planned Parenthood v. Casey.
“Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis,” Roberts wrote.
“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.”
In a concurring opinion, Thomas left open the possibility that the court could revisit previous rulings on contraception and same-sex marriage.
Democrat-nominated Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan jointly wrote a dissenting opinion that criticized their colleagues for a "cavalier approach to overturning this court's precedents" and disregard for the doctrine of stare decisis — "that things decided should stay decided unless there is a very good reason for change."
"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 three liberal justices wrote.
"We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals — yes, including women — to make their own choices and chart their own futures. Or at least, we did once."
Michigan Attorney General Dana Nessel on Friday agreed with the dissenters that the ruling represented for women "the erosion of our status as equal citizens under the law."
"Today’s decision sets a dangerous precedent in reversing 50 years’ of settled law; creating extraordinary upheaval in the American legal system; and putting at risk other individual rights that generations of Americans fought to secure and preserve," said Nessel, who is up for reelection this fall.
"Now, we must do what our courts have failed to do: We must act to ensure that women are not permanently relegated to second-class citizens in this country. I will continue to fight for a women’s right to choose with the full weight of my office."
Mississippi law overturned
The case at hand, Dobbs v. Jackson Women's Health, concerns a 2018 Mississippi law that bans all abortions after 15 weeks with few exceptions. Jackson Women's Health Organization was the only licensed abortion facility in the state, and it sued in federal court to challenge the law.
The Mississippi statute never went into effect after a district judge and then the U.S. Court of Appeals for the 5th Circuit ruled that Roe and Planned Parenthood v. Casey, a 1992 case, prohibit states from banning abortions before fetal viability (around 24 weeks).
The high court's decision in Dobbs capped a nearly five-decade effort among anti-abortion activists to undo the 1973 Roe decision, a 7-2 decision protecting abortion rights that critics argued created law without constitutional grounds. It became a defining issue in the political culture fights that would follow and eventually became a platform of the Republican Party.
In the days following the opinion leaked on May 2, Senate Democrats attempted to push through a House-passed bill codifying abortion rights in federal law, but it failed in the evenly divided chamber. Republicans lambasted the leak itself, arguing it represented an effort to undermine the court and pressure the justices to change their minds.
More than 60% of Americans said they believe abortion should be legal in all or most cases, according to the Pew Research Center. That's consistent with U.S. public sentiment for nearly the last three decades.
A January poll found two-thirds of Michigan's likely general election voters wanted Roe v. Wade left in place, according to the Detroit News-WDIV survey. The poll of 600 likely voters by the Glengariff Group had a margin of error of plus-minus 4 percentage points.
Michigan Gov. Gretchen Whitmer has filed a lawsuit to overturn the state's 1931 abortion ban by recognizing a right to abortion in the state constitution. After Friday’s ruling in Dobbs, she again filed a motion in the Michigan Supreme Court urging the justices to immediately take up her case.
Planned Parenthood of Michigan is also challenging the state law in court. Sarah Wallett, chief medical officer of the organization, reiterated Friday that abortion remains legal in Michigan, and that its clinics remain open.
Wallett expected to see patients to begin coming in from other states such as Ohio and Wisconsin, where abortion bans immediately go into effect.
“We’re preparing to help support them and see as many patients as we can," Wallett said.
Other rights at risk?
Legal experts said Friday that the justices appeared split on what the Dobbs ruling could mean for other rights, such as same-sex marriage or the right to contraception.
Alito in the majority opinion contended that the right to an abortion differs from other rights and that overturning it wouldn't necessarily "cast doubt" on other legal protections decided under the same legal doctrine.
"(R)ights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life,'" Alito wrote.
"Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by 'appeals to a broader right to autonomy.' It is hard to see how we could be clearer."
But scholars such as Barb McQuade at the University of Michigan Law School said the right the court has now eliminated in Roe is the same one that provided the foundation for those other rights that Alito mentioned, stemming from the principle of the substantive due process right to privacy.
"And so if you say there is no such thing and so abortion must fall, then if there were to be a challenge to any of those other rights, they no longer have the foundation either," said McQuade, a former Detroit U.S. attorney under President Barack Obama who specializes in civil rights, public interest law and criminal law.
"Now, it would require a state to pass a law that bans one of those rights, and maybe that's unlikely. But then if they did, someone would challenge that law, it would go to the Supreme Court."
Justice Thomas in his separate opinion argued the court should reconsider all of its substantive due process precedents, including Griswold v. Connecticut on contraception, Obergefell v. Hodges on same-sex marriage and Lawrence v. Texas, which concerned state prohibitions on same-sex sexual relations.
"Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents," Thomas wrote.
Mae Kuykendall, a law professor at Michigan State University, said Thomas' opinion is inviting litigation to challenge the legal precedents protecting a right to birth control, same-sex intimacy and marriage.
The high court only requires four justices to agree to hear a case. "So the big question would be: Does Thomas have three other members of the court who would be willing to vote with him to hear (those) cases?" Kuykendall said.
She added that the majority's argument that abortion laws should be determined by state legislatures is "dishonest" because many state's voting districts heavily favor one party over another, making them an inaccurate representation of public opinion.
"They say let the people decide," Kuykendall said, citing estimates that nearly 1 in 4 women will have an abortion in their lifetime. "Women have been speaking, as they manage their reproductive lives. (The Dobbs decision) relegates women to biological destiny."
But it's significant that no other justice joined Thomas' opinion, said John Bursch, the former Michigan solicitor general under Republican former state Attorney General Bill Schuette. He noted that the five justices behind the majority opinion stressed that nothing in it should be construed to cast doubt on precedents that do not concern abortion.
"I find it kind of odd that those who are unhappy with the opinion are shifting so quickly to raise other constitutional questions, rather than defending Roe v. Wade," said Bursch, who is representing Right to Life of Michigan and the Michigan Catholic Conference in litigation over the state's abortion law.
"To me, the obvious takeaway of all that is that Roe was at the time that it was decided and is today indefensible, or otherwise those critics would all be jumping up and down saying why Justice Alito got it wrong."
Instead, Bursch said he was hearing from every corner the exaggeration that "every woman is going to die" or that other constitutional rights are in jeopardy.
Bursch called the Dobbs decision sound and principled. He said the next practical consideration is for Michigan women who may be pregnant and who won't able to get an abortion in the state.
"So what happens there? Well, we need to offer all the resources that they need in order to be able to care for themselves and care for their child," Bursch said.
"It's doing everything that we can possible to walk alongside those women and help them to choose life. And that would be an honorable, wonderful thing to happen."
mburke@detroitnews.com
rbeggin@detroitnews.com
Staff Writers Beth LeBlanc and Hayley Harding contributed.