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Roe decision as severe as advocates feared

A couple embraced as they took part in a Rally to Defend Abortion Rights in Boston.Jessica Rinaldi/Globe Staff

For those who oppose abortion, Friday’s Supreme Court decision was a long-fought victory. But for abortion rights supporters, the ruling — and its implications — was just as bad as they feared.

Abortion rights activists and liberal-leaning legal scholars say the decision Friday that topples the constitutional right to abortion access in place for nearly a half century is every bit as damaging as the initial draft of the opinion suggested when it was leaked nearly two months ago, rattling much of the country.

Friday’s opinion from the court’s conservative majority not only eviscerates the longstanding federal protection for people seeking abortion, they said, but the legal reasoning behind the decision has severe implications for other modern liberties that Americans have enjoyed, including the rights to sexual intimacy, to same-sex marriage, and to contraceptive access.

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“We are now moving backwards,” said Priscilla Smith, a former litigator on reproductive rights issues who now runs Yale Law School’s Reproductive Rights and Justice Project.

“This is going to affect real people, on the ground,” she said, imagining how many people had to cancel an abortion procedure on Friday, and whose future health decisions remain in doubt. “It’s going to change their lives, in all the ways you’d expect.”

The court’s roughly 80-page opinion, written by Justice Samuel Alito, has essentially the same aggressive tone as his draft opinion that was leaked in early May. And, it relies upon the same legal reasoning that triggered alarms then: It overturns a person’s right to an abortion by claiming a person has no such liberty, because it was not specifically spelled out in the Constitution.

In his final decision, Alito wrote that abortion decisions are complex matters involving competing interests over a mother’s rights and a state’s interest in protecting the fetus, and such matters should be left to the states and the “elected representatives” to regulate.

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Alito emphasized, though, that states have an interest in protecting the fetus, citing its “potential for life”; he repeatedly refers in the opinion to protections for “unborn human beings.”

That legal reasoning, abortion rights advocates warn, leaves the door wide open for opponents to seek a nationwide ban, pitting a woman’s right to decide whether to carry a child to term — with considerations for her own autonomy, economic status, and overall well-being — against the state’s interests in protecting an unborn fetus.

After Friday’s ruling was released, former vice president Mike Pence urged abortion foes to do just that and push for a nationwide abortion ban.

“Now that Roe v. Wade has been consigned to the ash heap of history, a new arena in the cause of life has emerged, and it is incumbent on all who cherish the sanctity of life to resolve that we will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America,” he said.

“[W]e must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.”

While antiabortion forces celebrated, abortion rights advocates and other critics of the decision plotted out the potential repercussions. “This decision is seismic, in terms of the impact it’s going to have on people’s ability to control their lives, their careers; control their families; control their bodies,” said Jessie Rossman, an attorney with the American Civil Liberties Union of Massachusetts.

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The Supreme Court decision Friday centered on a Mississippi law that outlawed abortions after 15 weeks of pregnancy, about two months short of the time frame allowed under protections set by the landmark 1973 Roe v. Wade case, which allowed the procedures up until a fetus could be declared viable outside the womb.

With Friday’s ruling, at least 26 states have enacted or are set to enact laws at least as strong as the 15-week ban, and some have even more extreme restrictions. Several had existing trigger laws that would allow for an outright ban should the Supreme Court ever overturn Roe.

The court also now allows laws in Texas and Oklahoma that ban abortions after a heart beat is detected, which can occur as early as six weeks into a pregnancy, sooner than some women even know they are pregnant.

What’s more, abortion rights advocates said, is that the Supreme Court ruled Friday that it will apply a “rational basis” test to decide all future challenges to state laws, the lowest standard the court follows and well below the “heightened scrutiny” standard the court had previously applied to abortion laws. That heightened scrutiny standard would make it more difficult to challenge state abortion restrictions.

Analysts say the decision will open the door to a flood of legal challenges across the country, and could allow states to seek penalties against those who seek abortions in other states, as well as anyone who helps them — a point raised in the dissenting opinion by the court’s three liberal justices.

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“After this decision, some states may block women from traveling out of state to obtain abortions, or even to obtain abortion medications from other states. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other states’ abortion services,” Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor warned in their dissent. “Most threatening of all, no language in today’s decision stops the federal government from prohibiting abortions nationwide, once again from the moment of conception and without exemptions for rape or incest.”

Those concerned with Alito’s legal reasoning focused specifically on his claim that a woman does not have a right to an abortion, because such a liberty is not specifically spelled out in the Constitution. In 1973, the Supreme Court found that the right to an abortion was an inherent liberty under the due process clause of the 14th Amendment.

Alito said in his opinion the court erred in Roe, a rare time when the court overturned its own precedent. He argued the right to an abortion was not a guaranteed liberty because it was not a right “deeply rooted in a nation’s history,” a standard the court has followed for deciding similar cases. He cited cases dating to the 1800s that found abortion illegal under common law. (Some historians have argued Alito ignored other relevant history when abortion was allowed.)

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Alito’s reasoning, opponents argued, could be similarly used to overturn other modern rights enjoyed under the due process clause, specifically the rights to intimacy and sexual autonomy.

Those rights would similarly fail Alito’s standard, since they are not “deeply rooted in this nation’s history,” numerous legal scholars and advocates argue. Moreover, Justice Clarence Thomas, in a concurring opinion, notably argued the court should similarly overturn related rulings, specifically legalizing gay sex, gay marriage, and access to contraceptives.

“It’s a disastrous decision in terms of fundamental rights and the notion that the court is taking away rights,” said Gary Buseck, a senior adviser for GLAD, a legal advocacy organization. “Today the worry is about what this has done to what we thought was a wholly protected right that was never going to be touched. If the court’s willing to do this, well, maybe all bets are off.”

Conservative legal analysts disagreed. Several said there is no indication the court would take those next steps, noting Alito’s own declaration that the decision centered solely on abortion and the protection of a fetus.

But abortion rights advocates — as well as the three dissenting justices — argued there is no way to restrain future courts from making a similar decision, that Alito’s declaration will do little to ward off those seeking to overturn gay marriage.

“[N]o one should be confident that this majority is done with its work,” Breyer, Kagan, and Sotomayor wrote.

Travis Andersen and Stephanie Ebbert of Globe staff contributed to this report.


Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia and on Instagram @miltonvalencia617.