{"id":127,"date":"2022-06-25T07:23:58","date_gmt":"2022-06-25T07:23:58","guid":{"rendered":"https:\/\/mpelembe.net\/?p=127"},"modified":"2022-06-25T07:25:34","modified_gmt":"2022-06-25T07:25:34","slug":"roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision","status":"publish","type":"post","link":"https:\/\/mpelembe.net\/index.php\/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision\/","title":{"rendered":"Roe overturned: What you need to know about the Supreme Court abortion decision"},"content":{"rendered":"

Linda C. McClain<\/a>, Boston University<\/a><\/em> and Nicole Huberfeld<\/a>, Boston University<\/a><\/em><\/span><\/p>\n

After half a century, Americans\u2019 constitutional right to get an abortion has been overturned by the Supreme Court.<\/em><\/p>\n

The ruling in Dobbs v. Jackson Women\u2019s Health Organization<\/a> \u2013 handed down on June 24, 2022 \u2013 has far-reaching consequences. The Conversation asked Nicole Huberfeld<\/a> and Linda C. McClain<\/a>, health law and constitutional law experts at Boston University, to explain what just happened, and what happens next.<\/em><\/p>\n

<\/p>\n

What did the Supreme Court rule?<\/h2>\n

The Supreme Court decided by a 6-3 majority to uphold Mississippi\u2019s ban on abortion after 15 weeks of pregnancy. In doing so, the justices overturned two key decisions protecting access to abortion: 1973\u2019s Roe v. Wade<\/a> and Planned Parenthood v. Casey<\/a>, decided in 1992.<\/p>\n

The court\u2019s opinion<\/a>, written by Justice Samuel Alito, said that the Constitution does not mention abortion. Nor does the Constitution guarantee abortion rights via another right, the right to liberty.<\/p>\n

The opinion rejected Roe\u2019s and Casey\u2019s argument that the constitutional right to liberty included an individual\u2019s right to privacy<\/a> in choosing to have an abortion, in the same way that it protects other decisions concerning intimate sexual conduct, such as contraception and marriage. According to the opinion, abortion is \u201cfundamentally different\u201d because it destroys fetal life.<\/p>\n

The court\u2019s narrow approach to the concept of constitutional liberty is at odds with the broader position it took in the earlier Casey ruling, as well as in a landmark marriage equality case, 2015\u2019s Obergefell v. Hodges<\/a>. But the majority said that nothing in their opinion should affect the right of same-sex couples to marry.<\/p>\n

Alito\u2019s opinion also rejected the legal principle of \u201cstare decisis<\/a>,\u201d or adhering to precedent. Supporters of the right to abortion argue that the Casey and Roe rulings should have been left in place as, in the words of the Casey ruling<\/a>, reproductive rights allow women to \u201cparticipate equally in the economic and social life of the Nation.\u201d<\/p>\n

The ruling does not mean that abortion is banned throughout the U.S. Rather, arguments about the legality of abortion will now play out in state legislatures<\/a>, where, Alito noted, women \u201care not without electoral or political power.\u201d <\/p>\n

States will be allowed to regulate or prohibit abortion subject only to what is known as \u201crational basis<\/a>\u201d review \u2013 this is a weaker standard than Casey\u2019s \u201cundue burden<\/a>\u201d test. Under Casey\u2019s undue burden test, states were prevented from enacting restrictions that placed substantial obstacles in the path of those seeking abortion. Now, abortion bans will be presumed to be legal as long as there is a \u201crational basis\u201d for the legislature to believe the law serves legitimate state interests.<\/p>\n

In a strenuous dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor faulted the court\u2019s narrow approach to liberty and challenged its disregard both for stare decisis and for the impact of overruling Roe and Casey on the lives of women in the United States. The dissenters said the impact of the decision would be \u201cthe curtailment of women\u2019s rights, and of their status as free and equal citizens.\u201d They also expressed deep concern over the ruling\u2019s effect on poor women\u2019s ability to access abortion services in the U.S.<\/p>\n

Where does this decision fit into the history of reproductive rights in the U.S.?<\/h2>\n

This is a huge moment. The court\u2019s ruling has done what reproductive rights advocates feared for decades: It has taken away the constitutional right to privacy that protected access to abortion.<\/p>\n

This decision was decades in the making. Thirty years ago when Casey was being argued, many legal experts thought the court was poised to overrule Roe<\/a>. Then, the court had eight justices appointed by Republican presidents, several of whom indicated readiness to overrule in dissenting opinions.<\/p>\n

Instead, Republican appointees Anthony Kennedy, Sandra Day O\u2019Connor and David Souter upheld Roe. They revised its framework to allow more state regulation throughout pregnancy and weakened the test for evaluating those laws. Under Roe\u2019s \u201cstrict scrutiny\u201d test<\/a>, any restriction on the right to privacy to access an abortion had to be \u201cnarrowly tailored\u201d to further a \u201ccompelling\u201d state interest. But Casey\u2019s \u201cundue burden\u201d test gave states wider latitude to regulate abortion.<\/p>\n

Even before the Casey decision, abortion opponents in Congress had restricted access for poor women and members of the military greatly by limiting the use of federal funds to pay for abortion services<\/a>.<\/p>\n

In recent years, states have adopted numerous restrictions on abortion that would not have survived Roe\u2019s tougher \u201cstrict scrutiny\u201d test. Even so, many state restrictions have been struck down in federal courts under the undue burden test, including bans on abortions prior to fetal viability and so-called \u201cTRAP\u201d \u2013 targeted regulation of abortion provider \u2013 laws that made it harder to keep clinics open.<\/p>\n

President Donald Trump\u2019s pledge to appoint \u201cpro-life\u201d justices to federal courts \u2013 and his appointment of three conservative Supreme Court justices \u2013 finally made possible<\/a> the goal of opponents of legal abortion: overruling Roe and Casey.<\/p>\n

What happens next?<\/h2>\n

Even before Dobbs, the ability to access abortion was limited by a patchwork of laws across the United States. Republican states have more restrictive laws than Democratic ones, with people living in the Midwest and South subject to the strongest limits.<\/p>\n