The US Supreme Court on Friday overturned Roe v. Wade, the landmark 1973 decision that enshrined a constitutional right to an abortion, along with a 1992 case, Planned Parenthood v. Casey, that reaffirmed Roe.
The court upheld a Mississippi abortion law that brought the issue to the court, but Chief Justice John Roberts criticized his conservative colleagues, saying they had gone too far by completely overturning Roe and Casey.
Justice Samuel A. Alito wrote the opinion, and he was joined by Clarence Thomas, Brett M. Kavanaugh, Neil M. Gorsuch, and Amy Coney Barrett.
Roberts wrote a concurring opinion, saying he didn’t agree with the majority opinion but supported the judgment in the case. Thomas and Kavanaugh also wrote concurring opinions, further outlining their views.
Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan wrote a dissenting opinion.
Here are some key passages from those opinions:
From the majority opinion
The bottom line
“Abortion presents a profound moral question,” Alito stated in the ruling. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.“
The Constitution does not guarantee the right to abortion, even under Fourteenth Amendment’s due process clause
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
“Guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”
Abortion is different from other rights the court has recognized because abortion destroys “fetal life”
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
The court doesn’t have to observe stare decisis, the doctrine that calls for prior decisions, or precedent, to be followed in most instances
“Stare decisis ... does not compel unending adherence to Roe’s abuse of judicial authority,” Alito wrote. “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 enflamed debate and deepened division.”
“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution— the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages’—we place a high value on having the matter ‘settled right.’”
“The Solicitor General suggests that overruling [Roe and Casey] would ‘threaten the Court’s precedents holding that the Due Process Clause protects other rights.’ That is not correct for reasons we have already discussed. As even the Casey plurality recognized, ‘abortion is a unique act’ because it terminates ‘life or potential life.’ And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
The court can’t be influenced by the public’s reaction
“The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach,” Alito wrote. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
From Chief Justice Roberts’s concurring opinion
The majority shouldn’t have gone so far
“I would take a more measured course. … If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them.”
Overruling Roe and Casey unsettles the legal system
“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 … would be markedly less unsettling, and nothing more is needed to decide this case. … I therefore concur only in the judgment.”
From Justice Thomas’s concurring opinion
The due process clause is only about process and doesn’t guarantee rights, so other cases should be reconsidered as well
“The Due Process Clause at most guarantees process,” Thomas wrote. “It does not, as the Court’s substantive due process cases suppose, ‘forbid the government to infringe certain “fundamental” liberty interests at all, no matter what process is provided.’”
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [editor’s note: right of married people to get contraceptives], Lawrence [right to engage in private, consensual sexual acts], and Obergefell [right to marry a person of the same sex]. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
From Justice Kavanaugh’s concurring opinion
The Constitution is ‘neither pro-life nor pro-choice,’ so the court shouldn’t be either
“On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress — like the numerous other difficult questions of American social and economic policy that the Constitution does not address. Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”
From the dissent by Justices Breyer, Sotomayor, and Kagan
The decision means from the very moment of fertilization, a woman has ‘no rights to speak of’
“For half a century, [Roe and Casey] have protected the liberty and equality of women,” the justices wrote. “Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be.”
“The Court struck a balance, as it often does when values and goals compete. ... Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
The ruling will lead to the ‘curtailment of women’s rights, and of their status as free and equal citizens’
“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. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected ‘the ability of women to participate equally in [this Nation’s] economic and social life.’ Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”
The majority substitutes a ‘rule by judges for the rule of law’
“Nothing — and in particular, no significant legal or factual change — supports overturning a half-century of settled law giving women control over their reproductive lives. ... The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
The decision opens the door to a national abortion ban
“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 exceptions for rape or incest.”
Martin Finucane can be reached at email@example.com.