A number of legal experts Friday blasted the Supreme Court decision that ended constitutional protections for abortion that had been in place for nearly 50 years, while conservative jurists praised the highly anticipated decision.
“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,” Justice Samuel Alito wrote in an opinion that split along ideological lines, with the court’s conservative majority voting to overturn the legal precedents.
Alito wrote in the decision that authority to regulate abortion rests with the legislative branch of government, not the courts.
Elie Mystal, a prominent attorney, author, and commentator, was among the legal specialists who quickly took to social media to voice their displeasure with the ruling.
“This is the most extreme version of this opinion that there could be,” Mystal tweeted, adding that “the conservatives always promised to do this. And all the people who told you we were ‘hysterical’ were total liars.”
This is the most extreme version of this opinion that there could be.— Elie Mystal (@ElieNYC) June 24, 2022
But Erin Hawley, senior counsel of the conservative Alliance Defending Freedom, said Alito had gotten it right with his opinion.
“The Supreme Court has corrected a historically bad mistake in its precedent,” said Hawley in a statement. “Today’s decision is a win for life and for the Constitution. There is not, and has never been, a constitutional right to take the life of an innocent, unborn child.”
Critics of the ruling pointed to the precedent it could set for other issues.
Neal Katyal, a former acting US solicitor general in the Obama administration, tweeted that the ruling could set the table for extreme measures like overturning Loving v. Virginia, a 1967 ruling that removed bans on interracial marriage.
“Wonder if Loving v Virginia is next on the list of cases for Justice [Clarence] Thomas to overrule,” Katyal tweeted, citing Thomas’s concurring opinion Friday in the abortion case.
“Justice Thomas concurs, saying overruling Roe isn’t enough. ‘For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.’ That’s right to privacy, contraception, marriage equality, etc,” Katyal tweeted.
Justice Thomas concurs, saying overruling Roe isn't enough. "For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell." That's right to privacy, contraception, marriage equality,etc— Neal Katyal (@neal_katyal) June 24, 2022
Laurence Tribe, a Harvard Law School professor, tweeted his frustration that the high court struck down the federal right to an abortion one day after invalidating a New York law requiring people to demonstrate a particular need for carrying a gun in order to get a license to carry one in public. That ruling was seen as a major expansion of gun rights that could lead to more people legally armed in cities and beyond.
“It’s staggering how the Court can celebrate giving political majorities in the states control over women’s bodies the very day after the same Trump-packed majority took from those political majorities the ability to protect lives from gunfire delivered by people concealing guns,” Tribe tweeted Friday.
Tribe stressed that nothing in Alito’s opinion “suggests any limit” on Congress’s ability to pass a nationwide abortion ban, should lawmakers choose to do so.
That’s unlikely for the moment with Democrats currently hanging on to a majority in Congress, but political prognosticators are forecasting potential big gains for Republicans in November.
“Only voting for pro-choice Reps and Senators will do,” Tribe tweeted.
Here we go! Nothing in today’s majority opinion by Justice Alito or in any of the concurring opinions, despite all the stuff about letting states decide, suggests any limit on the ability of Congress to ban abortion nationwide. Only voting for pro-choice Reps and Senators will do https://t.co/L5BQnr2C2W— Laurence Tribe (@tribelaw) June 24, 2022
Rebecca Reingold, associate director of the Health and Human Rights Initiative at the O’Neill Institute for National & Global Health Law at Georgetown Law School, said women of color could be particularly vulnerable in a post-Roe world.
“Many women who are living in poverty, in rural areas, who are women of color, who are young, who are undocumented, and who experience intimate partner violence will find it impossible to access abortion services,” Reingold said in a statement. “Harsh penalties for providing abortions will undermine the patient-physician relationship and dissuade physicians from treating miscarriages and other obstetric emergencies, resulting in worse maternal and infant health outcomes.”
Andrés Constantin, assistant director of health law programs at the Georgetown institute, called Friday’s ruling a “dangerous step back” for the country in a separate statement.
“We have seen how abortion bans play out in other countries, particularly in Latin America,” Constantin said. “The bottom line is that this SCOTUS decision will force women, girls, and adolescents to resort to clandestine, illegal, and unsafe abortion services. ... With this decision, the U.S. is turning its back away from women seeking essential health care and joining the ranks of countries that ban abortion in most circumstances, such as Poland, Libya, Brazil and Iran.”
Katie Keith, director of the Health Policy and the Law Initiative at the Georgetown institute, spoke in even more dire terms, calling the ruling “nothing short of a death sentence for some women” portending “swift and devastating” fallout.
“Access to abortion services, and related services like miscarriage management, will be even more dismal than they are now and will disproportionately burden low-income women and women of color who are already more likely to face barriers to abortion,” Keith said. “No one should be forced to carry a pregnancy and give birth against their will. But that is exactly what the Supreme Court’s new conservative majority sanctions by overturning nearly 50 years of precedent and stripping women of a constitutionally protected right.”
Conservatives, however, focused Friday on what they said were the rights of unborn children.
Among those voices was Kristen Waggoner, general counsel for the Alliance Defending Freedom, who lauded the ruling in a statement of her own.
“The Supreme Court’s decision is a major victory for unborn children and their mothers,” Waggoner said. “Laws across the country can now affirm that life is a human right and ensure women have greater access to the support and resources they need and deserve. We now turn to the states to ensure that unborn children and their mothers are protected from the gruesome reality of abortion, and that they receive the care and resources they need to flourish.”
Material from the Associated Press was used in this report. Steve Annear of the Globe Staff contributed.
Correction: An earlier version of this story misstated the Supreme Court ruling in Loving v. Virginia. The ruling struck down bans on interracial marriage.
Travis Andersen can be reached at firstname.lastname@example.org.