The Supreme Court has overturned Roe v. Wade and its guaranteed right to an abortion, a ruling that was expected after a draft opinion was leaked in May, when it sent shock waves across the country.
But those who’ve been watching the abortion rights debate closely were not surprised that this conservative majority would eviscerate what had been a constitutional right for nearly 50 years.
Indeed, the 1973 decision came under attack almost immediately. A mere three years after the court decided Roe, Congress curtailed abortion access by passing the Hyde Amendment, which prohibits federal funds being used to finance abortions. The measure, slightly altered, remains in force and means Americans who rely on Medicaid, by definition some of the country’s poorest, can’t receive federal support for an abortion, unless the pregnancy is the result of rape or incest or if the woman’s life is in danger. (Massachusetts is one of more than a dozen states where Medicaid, which is funded by states and the federal government jointly, does cover abortion.)
Supreme Court Justice Samuel Alito’s opinion reflects a movement that has been building for decades and has a different legal interpretation of what rights are guaranteed under the Constitution, Bernadette Meyler, a Stanford University Law School professor and an expert in constitutional law, said earlier this year after the draft opinion was leaked.
“It’s because of powerful social movements that supported a whole new philosophy of legal interpretation that enabled a set of reasons that would get rid of Roe,” Meyler said. “This social movement has been building since the decision in Roe.”
Here is a look at key moments that brought us to Roe’s demise:
A refresher on Roe v. Wade
In a 7-2 landmark decision on Jan. 23, 1973, the US Supreme Court rules that women have a constitutional right to an abortion, striking down a Texas law making it a crime except in cases where the mother’s life was at risk. Justice Harry A. Blackmun, a Republican writing for the majority, said that states may restrict abortions after a fetus becomes viable — meaning it could survive outside the womb, at that time considered about 28 weeks — but must consider the life and health of the mother.
Past cases that have upheld or chipped away at Roe
1980: In Harris v. McRae, the Supreme Court upheld the Hyde Amendment to the US Social Security Act that says Medicaid funding may only be used for abortions in cases of rape, incest, or when the woman’s life is in danger.
1989: In a 5-4 decision in Webster v. Reproductive Health Services, the Supreme Court upheld the constitutionality of a Missouri law that prohibited the use of government workers or facilities to perform abortions. It also upheld the legality of a provision in the law that required doctors to perform fetal viability tests on women who were at least 20 weeks pregnant and seeking an abortion.
1990: In Hodgson v. Minnesota, the Supreme Court struck down a Minnesota law that requires minors to notify both parents before having an abortion, ruling they must have the option of asking a judge to waive that requirement.
1992: In Planned Parenthood v. Casey, the court upheld a woman’s constitutional right to have an abortion until fetal viability, but loosened previous restrictions on states. It upholds the legality of most provisions in a Pennsylvania law, including an informed-consent requirement and 24-hour waiting period for women seeking abortions, and a requirement that minors get consent from one parent or guardian — as long as they don’t interfere with a woman’s right to terminate her pregnancy. However, the court strikes down a provision that required a wife to notify her husband before getting an abortion.
2007: In Gonzales v. Carhart, the Supreme Court voted 5-4 to uphold the federal Partial-Birth Abortion Ban Act. It marked the first time the court declared constitutional an abortion law that didn’t include a provision for exceptions when a woman’s life is at risk.
2016: In a 5-3 opinion in Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled that two Texas abortion restrictions were unconstitutional because they impose conditions on doctors and health care facilities that would cause abortion providers to shut down and deny women access in the state.
2020: In a 5-4 vote in June Medical Services v. Russo, the Supreme Court struck down a Louisiana law, saying it was nearly identical to a Texas law it had ruled unconstitutional four years earlier and would impose a burden on access to abortion in the state. Chief Justice John G. Roberts joined the court’s four-member liberal wing in casting the crucial fifth vote. It also marked the last time Justice Ruth Bader Ginsburg ruled on abortion access. She died later that year.
December 2021: The Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, the case at the center of the court’s decision to overturn Roe. The case involves a Mississippi law that bans abortions after 15 weeks of pregnancy. During the arguments, the court signaled that it was on the verge of a major shift in its abortion jurisprudence.
May 2, 2022: Politico published a leaked draft opinion showing the Supreme Court was poised to overturn Roe v. Wade. The news sparked protests and sent shock waves across the nation.
June 24, 2022: The Supreme Court overturned Roe v. Wade.
Appointments shift the court to the right
Justice Antonin Scalia, a Ronald Reagan nominee and conservative who railed against the Supreme Court rulings on abortion, died in February 2016. The following month, President Obama nominated moderate federals appeals court judge Merrick Garland, but Republican senators block a confirmation vote. Senate majority leader Mitch McConnell said the seat should be chosen by the next president, leaving it vacant for over a year. Newly elected President Trump, who vowed to put antiabortion justices on the court while campaigning, nominated Neil Gorsuch to succeed Scalia and he is confirmed in April 2017.
Justice Anthony M. Kennedy, an appointee of President Reagan who voted to overturn the Texas abortion restrictions two years earlier, retired in July 2018. Another conservative justice and Trump appointee, Brett Kavanaugh, was confirmed to succeed him in October after a wrenching debate over sexual misconduct and judicial temperament.
Trump appointee Amy Coney Barrett won confirmation in October 2020, replacing Ginsburg and solidifying the court’s conservative majority.
States take action
While they were awaiting the Supreme Court’s decision that could overturn Roe, Republican-led states forged ahead with stringent legislation. In May 2021, Texas enacted one of the nation’s most restrictive abortion measures, banning the procedure after six weeks of pregnancy. Opponents say the legislation amounts to an outright ban on abortion, as many women are not aware they are pregnant at the six-week mark. In October, the Supreme Court allowed the Texas law to remain in place while weighing a final decision on whether it is constitutional.
Why hasn’t there been a federal law to protect abortion rights?
The Freedom of Choice Act, which attempted to codify Roe’s protections, was first introduced in the Senate in 1989, then modified and refiled in Congress repeatedly in the decades since. But the bills have languished. In response to the draft ruling, Democrats have renewed calls for federal legislation to ensure that abortion access is protected. In September, the House of Representatives voted to protect the rights enshrined in the Roe v. Wade ruling. But the measure, which would have superseded state laws, was defeated in the Senate.
Now that Roe is overturned, could other rulings be next?
President Biden warned earlier this year that other privacy rights, including same-sex marriage and birth control, could also be at risk. Meyler, the Stanford law professor, agreed that people should be worried. The Supreme Court opinion held that abortion is not protected by the 14th Amendment because it’s not deeply rooted in the nation’s history and tradition. When the amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy. That interpretation “could implicate a lot of other unequal laws regarding gender,” she said.