HOUSTON — The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years in a decision by its conservative majority to overturn Roe v. Wade. Friday's outcome is expected to lead to abortion bans in roughly half the states.
The decision, unthinkable just a few years ago, was the culmination of decades of efforts by abortion opponents, made possible by an emboldened right side of the court that has been fortified by three appointees of former President Donald Trump.
The ruling came more than a month after the stunning leak of a draft opinion by Justice Samuel Alito indicating the court was prepared to take this momentous step.
It puts the court at odds with a majority of Americans who favored preserving Roe, according to opinion polls.
Alito, in the final opinion issued Friday, wrote that Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion, were wrong the day they were decided and must be overturned.
Top related headlines
- Who voted against Roe v. Wade?
- Which states will likely ban abortion now that Roe v. Wade is overturned?
- What is Roe v. Wade? | Explaining the now-overturned 1973 Supreme Court decision
- Numbers show Texas women are going out of state to get abortions
- Texas receives a 'D' grade for its number of preterm births
- US state legislators praise abortion access in Mexico
- Roe v. Wade fallout: Texas 'trigger law' will make abortions a felony when it takes effect
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote.
Authority to regulate abortion rests with the political branches, not the courts, Alito wrote.
Who voted against Roe v. Wade?
Here's a breakdown of how each of the nine justices voted in this landmark case.
Who voted to overturn Roe v. Wade?
Justices appointed by Republican presidents voted to overturn the landmark abortion-rights ruling. These are:
- Samuel Alito
- Clarence Thomas
- Neil Gorsuch
- Brett Kavanaugh
- Amy Coney Barrett
Chief Justice Roberts filed an opinion concurring with the judgement to uphold Mississippi's 15-week abortion ban in Dobbs v. Jackson Women's Health Organization, but he noted he would not have overturned Roe v. Wade.
Who voted to uphold Roe v. Wade
Justices appointed by Democrat presidents voted to keep the ruling these include:
- Elena Kagan
- Sonia Sotomayor
- Stephen Breyer
Joining Alito were Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The latter three justices are Trump appointees. Thomas first voted to overrule Roe 30 years ago.
Chief Justice John Roberts would have stopped short of ending the abortion right, noting that he would have upheld the Mississippi law at the heart of the case, a ban on abortion after 15 weeks, and said no more.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — the diminished liberal wing of the court — were in dissent.
“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote.
The ruling is expected to disproportionately affect minority women who already face limited access to health care, according to statistics analyzed by The Associated Press.
Thirteen states, mainly in the South and Midwest, already have laws on the books that ban abortion in the event Roe is overturned. Another half-dozen states have near-total bans or prohibitions after 6 weeks of pregnancy, before many women know they are pregnant.
In roughly a half-dozen other states, the fight will be over dormant abortion bans that were enacted before Roe was decided in 1973 or new proposals to sharply limit when abortions can be performed, according to the Guttmacher Institute, a research group that supports abortion rights.
More than 90% of abortions take place in the first 13 weeks of pregnancy, and more than half are now done with pills, not surgery, according to data compiled by Guttmacher.
PHOTOS: Crowds outside Supreme Court react to abortion ruling
The decision came against a backdrop of public opinion surveys that find a majority of Americans oppose overturning Roe and handing the question of whether to permit abortion entirely to the states. Polls conducted by The Associated Press-NORC Center for Public Affairs Research and others also have consistently shown about 1 in 10 Americans want abortion to be illegal in all cases. A majority are in favor of abortion being legal in all or most circumstances, but polls indicate many also support restrictions especially later in pregnancy.
The Biden administration and other defenders of abortion rights have warned that a decision overturning Roe also would threaten other high court decisions in favor of gay rights and even potentially, contraception.
But Alito wrote in his draft opinion that his analysis addresses abortion only, not other rights that also stem from a right to privacy that the high court has found implicit, though not directly stated, in the Constitution. Abortion is different, Alito wrote, because of the unique moral question it poses.
Whatever the intentions of the person who leaked Alito’s draft opinion, the conservatives held firm in overturning Roe and Casey.
In his draft, Alito dismissed the arguments in favor of retaining the two decisions, including that multiple generations of American women have partly relied on the right to abortion to gain economic and political power.
Changing the composition of the court has been central to the anti-abortion side’s strategy. Mississippi and its allies made increasingly aggressive arguments as the case developed, and two high-court defenders of abortion rights retired or died. The state initially argued that its law could be upheld without overruling the court’s abortion precedents.
Then-Gov. Phil Bryant signed the 15-week measure into law in March 2018, when Justices Anthony Kennedy and Ruth Bader Ginsburg were still members of a five-justice majority that was mainly protective of abortion rights.
By early summer, Kennedy had retired and was replaced by Justice Brett Kavanaugh a few months later. The Mississippi law was blocked in lower federal courts.
But the state always was headed to the nation’s highest court. It did not even ask for a hearing before a three-judge panel of the 5th U.S. Circuit Court of Appeals, which ultimately held the law invalid in December 2019.
By early September 2020, the Supreme Court was ready to consider the state’s appeal.
The court scheduled the case for consideration at the justices’ private conference on Sept. 29. But in the intervening weeks, Ginsburg died and Barrett was quickly nominated and confirmed without a single Democratic vote.
The stage now was set, although it took the court another half year to agree to hear the case.
By the time Mississippi filed its main written argument with the court in the summer, the thrust of its argument had changed and it was now calling for the wholesale overruling of Roe and Casey.
The first sign that the court might be receptive to wiping away the constitutional right to abortion came in late summer, when the justices divided 5-4 in allowing Texas to enforce a ban on the procedure at roughly six weeks, before some women even know they are pregnant. That dispute turned on the unique structure of the law, including its enforcement by private citizens rather than by state officials, and how it can be challenged in court.
But Justice Sonia Sotomayor noted in a searing dissent for the three liberal justices that their conservative colleagues refused to block “a flagrantly unconstitutional law” that “flouts nearly 50 years of federal precedents.” Roberts was also among the dissenters.
Then in December, after hearing additional arguments over whether to block the Texas law known as S.B. 8, the court again declined to do so, also by a 5-4 vote. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” Roberts wrote, in a partial dissent.
In their Senate hearings, Trump’s three high-court picks carefully skirted questions about how they would vote in any cases, including about abortion.
But even as Democrats and abortion rights supporters predicted Kavanaugh and Gorsuch would vote to upend abortion rights if confirmed, the two left at least one Republican senator with a different impression. Sen. Susan Collins of Maine predicted Gorsuch and Kavanaugh wouldn’t support overturning the abortion cases, based on private conversations she had with them when they were nominees to the Supreme Court.
Barrett was perhaps the most vocal opponent of abortion in her time as a law professor, before becoming a federal judge in 2017. She was a member of anti-abortion groups at Notre Dame University, where she taught law, and she signed a newspaper ad opposing “abortion on demand” and defending “the right to life from fertilization to natural death.” She promised to set aside her personal views when judging cases.
Trump, meanwhile, had predicted as a candidate that whoever he named to the court would “automatically” vote to overrule Roe.
Texas law that was already in place
Prior to the overturning of Roe v. Wade, Texas already had an abortion law in place that is more restrictive than Mississippi's.
In September 2021, Senate Bill 8, or the "Texas Heartbeat Act," went into effect. That law bans abortions once cardiac activity is detected in a fetus, which is typically at around six weeks gestation and before many women learn they are pregnant. The only exception is for medical emergencies.
Senate Bill 8 is not enforced by the State of Texas but rather allows almost anyone, anywhere, to sue a doctor who performed an abortion or anyone who "aides and abets" a woman in getting an abortion and recover $10,000. Persons who rape or commit incest against a woman and cause the pregnancy are the only ones who cannot sue under the Texas law.
What is Texas' trigger law?
The "trigger law" was passed last year by the Texas Legislature and signed into law by Gov. Greg Abbott.
Attorney General Ken Paxton clarified that the "Human Life Protection Act" will take effect 30 days from the court's judgment on Roe v. Wade, which his office said in a release is separate from today's opinion.
Here are key elements of the law:
- It will outlaw abortions in Texas unless the mother's life is in danger.
- It will make performing an abortion in Texas a felony crime.
- Doctors who perform abortions could face life in prison and fines up to $100,000.
Anti-abortion advocates said the goal is to add civil penalties to the law.
Texas won't be the only state banning abortion.
Seth Chandler with the University of Houston Law Center sad about 25 states are going to have very strict limits on abortions.
Seth Chandler with the University of Houston Law Center said about 25 states are going to have very strict limits on abortions.
A recent CNN poll showed that a majority of Americans believe Roe v. Wade should not be completely overturned by the Supreme Court.
The polling shows that Americans are also concerned about the court restricting other liberties, like same-sex marriage.