The five-justice Supreme Court bloc that overturned a half century of women’s abortion rights on Friday had coalesced less than two years. But they had found their moment and they seized it.
This is America’s new Supreme Court, moving swiftly, rejecting the incrementalism of Chief Justice John Roberts, and upsetting individual privacy rights in an epic decision that will reverberate for decades.
No matter how much of a preview the country received when an early draft was leaked in May, the sweep and audacious tone of the final ruling still breathtaking.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote as the majority jettisoned the 1973 Roe v. Wade decision that made abortion legal nationwide. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The court rejected that landmark and a series of abortion rights decisions that followed, including the 1992 decision that reaffirmed Roe as key justices then in the majority declared they might not have voted for Roe but accepted the decision that had become ingrained in society.
“Our obligation is to define the liberty of all, not to mandate our own moral code,” Justice Sandra Day O’Connor said in 1992 when she and two other centrist conservatives, Anthony Kennedy and David Souter, were key to preserving Roe.
Their sentiment and that of most of the justices who have joined the high court since 1973 was that neither the country nor the court itself could go backward. Institutional integrity and the revered principle of stare decisis, adherence to precedent, demanded that.
But that is not this court. Today’s justices on the right wing are unlike the Republican-appointed conservatives who first voted for Roe and then upheld it, joined by justices on the left. The three Donald Trump appointees, including Justice Amy Coney Barrett, who joined the bench in October 2020 and anchored the Friday decision, have not hedged on abortion rights.
That majority opinion emphasized, rather than a women’s right to choose what happens to her pregnancy, the interests of the fetus. “(A)bortion is fundamentally different” the five wrote, because it “destroys … fetal life.” Alito noted that the disputed Mississippi ban used the term “unborn human being.”
O’Connor, who served from 1981 until her retirement in 2006, was the high court’s first female justice, and Barrett its fifth. During Barrett’s confirmation hearings, South Carolina GOP Sen. Lindsey Graham praised her openly anti-abortion sentiment, even as Barrett said she had not prejudged the issue.
Regardless of what she vowed or what Justice Brett Kavanaugh promised Maine Republican Sen. Susan Collins to secure her pivotal vote for his 2018 confirmation, Friday’s decision would not have been possible without them. They succeed justices who had endorsed abortion rights, Kennedy and the late Ruth Bader Ginsburg.
They, along Justice Neil Gorsuch – who Trump appointed after President Barack Obama was blocked from filling the seat of the late Justice Antonin Scalia – and the longer-serving Alito and Clarence Thomas offered a preview of Friday’s ruling last year when they voted together to allow a Texas ban on abortions at roughly six weeks of pregnancy to take effect.
Their drive to reverse Roe contrasts sharply to the emphasis of most prior GOP appointees, including Roberts, who even as he has opposed abortion rights has backed precedent.
On Friday, Roberts wrote as he agreed that a Mississippi 15-week ban should be upheld, that Roe should preserved: “The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system – regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
Even a ruling that simply affirmed the Mississippi 15-week abortion ban would have cut deeply into Roe because that decision and 1992’s Planned Parenthood v. Casey had prevented states from interfering with a woman’s right to end a pregnancy before a fetus was viable, that is, could live outside the womb. Physicians say viability occurs at about 23 weeks.
Roberts reiterated his view on Friday that “the viability line must be discarded,” even as he argued Roe should not be overruled “all the way down to the studs.”
The decision in Dobbs v. Jackson Women’s Health Organization has prompted a rush of competing reactions: Outrage among women’s rights advocates, particularly those concerned about women who would lack the means to travel to places where abortion might remain legal based on state law; and relief from religious and other conservative advocates who have been working for decades to reverse Roe.
And while the decision upends assumptions of women, families, medical providers, literally generations of Americans, it will most certainly define the contemporary Supreme Court.
For nearly 50 years, the majority accepted a constitutional right to abortion and demonstrated a regard for precedent. The court had grounded the right to end a pregnancy in the Fourteenth Amendment’s due process guarantee of personal liberty.
Dissenting justices warned that the five justices in the majority could go much further. “(N)o one should be confident that this majority is done with its work,” wrote Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in a joint dissent. “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”
Since 1973 when the court by a 7-2 vote cemented a significant right to privacy, 15 new justices have joined the bench. All but six of them have voted to endorse Roe in one way or another, some robustly, some reluctantly.
Five of those six now comprise the bloc that ensured the demise of Roe on Friday. They are also driving the law on the Second Amendment, more mixing of church and state, and a diminishment of regulatory authority. And this is likely to be the pattern for the near future.
The three Trump appointees are also the youngest of the current nine. Barrett is 50, Gorsuch is 54 and Kavanaugh is 57.
Mississippi officials, in fact, recognized the rightward thrust and the potential for its case. The state had initially asked the justices to simply review its 15-week abortion ban. But after the court had accepted the case and the trend of the new conservative majority was evident, Mississippi changed course and asked the justices to outright overrule Roe and Casey.
Mississippi argued that, despite a half century of rulings, the Constitution does not protect a right to abortion. It was an argument five of the current justices were plainly waiting to hear.
As Roberts wrote on Friday, “The Court now rewards that gambit.”