Supreme Court Overturns Roe and Casey, Restores Democratic Process
Friday, June 24, 2022

The Supreme Court, by a vote of 5-4, restored authority to state and federal legislators to determine laws on abortion reversing the nearly 50 years of Court-imposed abortion on demand throughout pregnancy. The Court overruled Roe v Wade (1973) which recognized abortion as a constitutional right and Planned Parenthood of Southeastern Pa. v. Casey (1992) which determined that restrictions on abortion are unconstitutional if they place an “undue burden” on a woman seeking an abortion.

The Court decided in the majority opinion in Dobbs v. Jackson Women’s Health Organization: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The opinion, written by Justice Samuel Alito, is about a case challenging the state of Mississippi’s ban on abortion after 15 weeks of pregnancy and was supported by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. In the 6-3 decision upholding Mississippi’s law, Chief Justice John Roberts concurred but dissented on overturning Roe and Casey

Justice Alito recognized the differing views about abortion in his opinion stating, “Abortion presents a profound moral issue on which Amer­icans hold sharply conflicting views.” He writes that some “believe fervently that a human person comes into being at conception and that abortion ends an innocent life”; others “feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality”; and that still others “think that abortion should be allowed under some but not all cir­cumstances, and those within this group hold a variety of views about the particular restrictions that should be im­posed.”

He explored the historical past and stated, “For the first 185 years after the adoption of the Constitu­tion, each State was permitted to address this issue in ac­cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.”

“At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process.”

Alito references Justice Byron White who in his dissent in 1973 wrote that the decision represented the “exercise of raw judicial power” and “sparked a national controversy that has em­bittered our political culture for a half century.” Ruth Bader Ginsburg is cited for her concern at the time that “Roe…halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue”.

The Majority concur, “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 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, in­cluding the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.”

The polarization brought about by Roe is recognized: “In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey rec­ognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” …Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

Alito concludes, “We end this opinion where we began. Abortion presents a profound moral question. 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.”

Justices Thomas and Kavanaugh filed concurring opinions. Justice Kavanaugh writes, “In my judgment, on the issue of abortion, the Constitu­tion is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neu­tral. The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abor­tion to the people and their elected representatives in the democratic process.”

Justice Thomas writes, “I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion.”

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan issued a dissenting opinion.

President Biden reacted to the decision calling it a "sad day for the court and for the country”, calling on Congress to codify abortion into federal law and calling on voters to elect lawmakers who support abortion.

He said that while the Supreme Court’s decision "casts a dark shadow over large swaths of the land," there still are "many states in this country that still recognize a woman’s right to choose." 

Rep. Chris Smith, chair of the Congressional Pro-Life Caucus said during a press conference at the U.S. Capitol, “Today, at long last, Justice Alito writing for the majority of the U.S. Supreme Court has reversed Roe (and Casey) and has returned the power to lawmakers to significantly regulate or even prohibit abortion.

“The hope and moral imperative to protect innocent children’s lives from extermination couldn’t come a moment too soon.

“Last September the House of Representative passed H.R. 3755 to legalize abortion until birth that is, at present, stalled in the Senate.

“These policies pose an existential threat to the well-being and lives of innocent children.

“If enacted, the House-passed bill will not only permit abortion until birth, but would nullify nearly every modest pro-life restriction ever enacted by the States, including Women’s Right to Know laws in 35 States, parental involvement statute in 37 States, the pain-capable unborn child protection laws in 19 States, waiting periods in 26 States, and so much more.

“All unborn babies deserve protection not death by abortion. Unborn babies and their mothers need support; we need to love and help them both.

“Now, more than ever, women and men of conscience must act to protect the weakest and most vulnerable.”

Sen. Steve Daines, chair of the Senate Pro-Life Caucus, posted on Facebook: “SCOTUS’s decision in Dobbs today ends a historic injustice, and returns the power to the American people, through their elected representatives, to protect unborn children and their mothers from the violence of abortion.

“I will not rest until the day that every child is protected under our laws and can enjoy our nation’s most sacred right — the right to life.”