The Supreme Court may undo Roe v. Wade—if a majority can agree on the right reason

Pro-life advocate Joe San Pietro participates in a 40 Days for Life vigil near the entrance to a Planned Parenthood center in Smithtown, N.Y., on March 26. (CNS photo/Gregory A. Shemitz)Pro-life advocate Joe San Pietro participates in a 40 Days for Life vigil near the entrance to a Planned Parenthood center in Smithtown, N.Y., on March 26. (CNS photo/Gregory A. Shemitz)

The wave of anti-abortion legislation passed by states in recent weeks is targeted to force the Supreme Court to reconsider Roe v. Wade (1973), which first declared a constitutional right to abortion, and Planned Parenthood of Southeastern Pa. v. Casey (1992), which affirmed and redefined that right. But before analyzing the likelihood that Roe v. Wade will be overruled, let us review the current status of abortion rights.

A brief history of Supreme Court precedent

Roe v. Wade’s 7-to-2 decision struck down state laws that criminalized abortion except to save a pregnant person’s life. The majority decision, written by Harry Blackmun, relied on a line of cases that affirmed rights not specified in the Constitution. Justice Blackmun wrote, “going back perhaps as far as Union Pacific R. Co. v. Botsford (1891)...the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”

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The Union Pacific case held that a court could not order a litigant who was an accident victim to undergo surgery to determine the extent of her injuries. The opinion stated, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person.” 

The majority in Roe v. Wade relied, in part, on a case that determined married couples have a constitutional right to use contraceptives.

To justify the assertion that this constitutionally protected right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the majority in Roe v. Wade also relied on Pierce v. Society of the Sisters (1925), which upheld the right of parents to send their children to religious schools, and Griswold v. Connecticut (1965), which determined that married couples have a constitutional right to use contraceptives.

The Roe v. Wade majority also addressed the status of the unborn and the government’s interest in protecting both maternal and fetal health. On fetal personhood, the court stated that none of the uses of the word “person” in the Constitution “indicates, with any assurance, that it has any possible pre-natal application.” The court further held:

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb…. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade did not end the abortion debate. States passed new abortion-related laws prohibiting specific procedures and imposing facility standards, waiting periods, spousal notification and parental consent requirements. The courts were called upon to determine the constitutionality of each new restriction, and their decisions revealed the limitations of Roe v. Wade’s trimester analysis.

Nineteen years later in the Casey decision,involving notification, consent and medical facility restrictions, the court conducted a wholesale review of Roe v. Wade. In a 5-4 opinion co-authored by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, the court affirmed “that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and declared that an “undue burden” test should be used to judge the constitutionality of pre-viability abortion laws.

This test has prevailed ever since.

The current court

None of the justices who decided Roe v. Wade are still on the court, and only Clarence Thomas was there when it decided Casey. In that case, Justice Thomas joined then-Chief Justice William Rehnquist’s dissenting opinion and voted to overturn Roe v. Wade. He has stood by this analysis throughout the years.

Four current justices—Ruth Bader Ginsburg, Stephen G. Breyer, Elana Kagan and Sonia Sotomayor—have made it equally clear that they would uphold the right to terminate pregnancies in accordance with the precedent established in Roe v. Wade and Casey. Interestingly, in her dissent to Gonzalez v. Carhart (2007) (5-4), the case that upheld a federal partial-birth abortion ban, Justice Ginsburg framed her endorsement of abortion rights in equal protection rather than privacy terms: “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Still, Justice Ginsburg did not suggest that the “Roe-Casey line of precedent” should be overruled.

Justice Ruth Bader Ginsburg has framed her endorsement of abortion rights in equal protection rather than privacy terms.

Justice Breyer joined in Justice Ginsburg’s dissent in Gonzalez v. Carhart and authored the court’s decision in Whole Woman’s Health v. Hellerstedt (2016) (5-3), which struck down Texas’s admitting privileges and abortion facilities requirements. Without reservation or discussion, Justice Breyer began by affirming precedent as pronounced in Casey. Justices Ginsburg, Sotomayor and Kagan (and then-Justice Kennedy) joined in this decision.

The remaining four justices—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito, Neil Gorsuch and Brett M. Kavanaugh—have never, as jurists, expressly rejected Roe v. Wade or Casey.

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Chief Justice Roberts and Justice Alito were on the court in 2007 and voted to uphold the federal partial-birth abortion ban in Gonzalez v. Carhart, but they chose not to join Justice Thomas in his concurring opinion, which reiterated his view that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade… has no basis in the Constitution.”

The newest members of the court, Neil Gorsuch and Brett M. Kavanaugh, have not had many occasions during their time on the bench to express their views on abortion, but they both passed on an opportunity to denounce Roe v. Wade and Casey when they voted in June Medical Services, LLC v. Gee (2019) and Box v. Planned Parenthood of Indiana and Kentucky, Inc. (2019). June Medical concerned Louisiana’s request for a stay from a lower court injunction against the state’s abortion facilities law. Both justices, along with Chief Justice Roberts and Justice Alito, voted to grant the stay, which could indicate they disfavor abortion rights, but Justice Kavanaugh’s dissenting opinion (the majority denied the stay) applied the undue burden test. He may have done this grudgingly because, as he noted, “[a]ll parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application.” Still, his reliance on existing abortion jurisprudence without negative comment is noteworthy.

Challenges from new state laws

Thus far, Alabama is the only state to attempt criminalizing abortion during all stages of pregnancy, with an exception to prevent a pregnant person’s death or “serious risk of substantial physical impairment of a major bodily function.” Other states, including Ohio, Kentucky and Georgia, have enacted laws that, if they were to pass constitutional muster, would criminalize abortion at six or eight weeks gestation; this is well before Casey’s viability threshold and often before a person knows she is pregnant.

Lower courts hearing challenges to these laws have enjoined them as unconstitutional under existing precedent, but if four Supreme Court justices vote to grant a writ of certiorari to review one of these pre-viability abortion ban cases, the entire court will be forced to examine several essential questions:

  1. the extent that stare decisis, a legal principle that constrains courts from issuing decisions inconsistent with precedent, applies to the court’s abortion decisions;
  2. whether pregnancy should be treated as a unique condition or analyzed similarly to other personal liberty or equal protection interests; and
  3. the appropriate standard that should be used to balance a pregnant person’s rights with the government’s right to protect life and regulate medical procedures.

Precedents for striking down precedents

The Roberts Court has not been shy about overruling other longstanding precedents, or breaking with stare decisis. In 2009, Chief Justice Roberts wrote a concurring opinion in Citizens United v. Federal Election Commission that overruled a previous decision so that corporations could be granted full First Amendment free speech rights. The chief justice wrote, “[w]hen considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”

He then listed various criteria that can be used to overcome stare decisis:

when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

In Janus v. AFSME (2018), Chief Justice Roberts joined Justice Alito’s 5-to-4 majority decision to overrule a 1977 case and grant public employees the right to refuse to pay fees to unions that represented them in collective bargaining. Justice Alito wrote:

we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood [the precedent case] was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.

Finally, this past May, in Franchise Tax Board of California v. Hyatt, a 5-4 majority granted state governments immunity from suits filed by citizens in other states, overruling a 1979 case. Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh joined a majority opinion authored by Justice Thomas, in which he questioned “the quality of the [prior] decision’s reasoning; its consistency with related decisions; [and] legal developments since the decision.”

The issues decided in each of these cases are quite different from abortion; and Casey, which specifically affirmed Roe v. Wade, as Justice Kavanaugh reportedly has stated, is “precedent on precedent.” Nevertheless, abortion opponents can cite the Citizens United and Janus decisions to argue that the Roe and Casey precedents have been “hotly contested” and have led to “practical problems.”

Abortion opponents can cite the Citizens United and Janus decisions to argue that the Roe and Casey precedents have been “hotly contested” and have led to “practical problems.”

At some point a case may come when a majority of the Court will decide, as it did in Casey, to directly address the constitutional underpinnings of abortion law precedent. At that time each justice will be obliged to give the “right” decision, as he or she sees it, and determine to what extent, if any, the Constitution protects the decision to terminate a pregnancy.

Justices Ginsburg, Breyer, Kagan and Sotomayor will undoubtedly determine that abortion is protected by the Constitution either as a fundamental right or under an equal protection analysis.

Justice Thomas already has decided that abortion is not a fundamental right. Under his analysis, the decision to terminate a pregnancy has the same protection as does the decision to drive a car as fast as one desires; and the government may limit that right for any reasonably related rational purpose.

Although not showing their hand with regard to abortion, Chief Justice Roberts and Justice Alito both dissented from the court’s decision in Obergefell v. Hodges (2015) (5-4), which determined the right to same-sex marriage. Their dissenting opinions indicate they would not recognize a right as “fundamental” unless specifically addressed in the Constitution or “deeply rooted in this Nation’s history and tradition.” As a circuit court judge, Justice Kavanaugh exhibited a similar reluctance to expand fundamental rights when he joined an opinion denying terminally ill patients a fundamental right of access to experimental treatment. And Justice Gorsuch, while on the Tenth Circuit, joined a decision (Brown v. Cooke) applying the same standard in a much more trivial case denying state recognition of a common-law name change.

Thus, it is possible that five of the current justices would overrule Roe-Casey precedent should the right case come before them. But it also is possible a majority would find a third way to analyze abortion rights that would recognize the seismic, irrevocable life-altering implications of motherhood while acknowledging the government’s interest in protecting unborn life. Such a compromise might require states to treat fertilized eggs outside the womb similarly to those in utero and provide medical and financial support to women and their children.

These results are unlikely, however, as the court is loathe to legislate remedies. Thus, should the court overrule Roe, Justice Antonin Scalia’s assessment will come true: “[t]he permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

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Crystal Watson
1 month ago

If the new Trump conservatives plus Roberta and Thomas vote to overturn Roe, that will be evidence that the Court is now nothing more than another wholly owned Trump subsidiary. 70+% of Americans want Roe to remain in place - they will lose confidence in the Court if it chooses to impose a minority reactionary religious view on the country.

Michael Bindner
1 month ago

If there were even 4 anti Roe Justices, the Indiana abortion vase would have been heard rather than the Circuit being affirmed Per Curiam. If the 5th Circuit is reversed on Louisiana Trap laws Per Curiam as well, there will be no more abortion cases reaching the Court. No death of 1000 cuts for abortion rights. The pro-life movement either has to work on a family wage through large child tax credits with pay or just go away (and take Trump with them).

Nora Bolcon
1 month ago

If these misogynistic rapist, greed mongering, new justices try to overturn Roe v. Wade that means we need to work an amendment demanding that women have all rights over the decisions on how their organs will be used and not used no matter what stage of pregnancy. Period. Otherwise, women are not even equal human beings to the zygote in their womb. Does that not begin the great dystopian nightmare for real? Meanwhile, there is no law demanding men even give blood to save their child once born.

Justice Thomas ((a graduate from Holy Cross College ((Jesuit run)), is the best reason never to vote for Joe Biden for the democratic nominee. Thomas is on our court because Biden didn't allow all the different women, other than Anita Hill, testify against him at the Senate approval hearing.. There were several other women who had been similarly harassed by Thomas and they were willing to testify, and Biden was heading the hearing, and did not allow them to testify.

For those interested in the FACT that Abortion criminalization always leads to more abortion and maternal deaths in every country across the globe:

From Guttmacher: Abortion and Birth Control Stats.
(Notes from my other research on this topic - bottom)
REGIONAL INCIDENCE AND TRENDS:
• The highest annual rate of abortion in 2010–2014 was in the Caribbean, estimated at 59 per 1,000 women of childbearing age, followed by South America, at 48.
The lowest rates were in Northern America, at 17, and Western and Northern Europe—at 16 and 18, respectively.
• Across regions, Eastern Europe experienced the largest decline in the abortion rate, from 88 in 1990–1994 to 42 in 2010–2014. Despite this decline, there is a persistent gap in rates between Eastern and Western Europe (42 vs. 16) likely reflecting lower use of effective, modern contraceptive methods in Eastern Europe.
• The overall abortion rate in Africa was 34 per 1,000 women in 2010–2014. Subregional rates ranged from 31 in Western Africa to 38 in Northern Africa. There has been little if any change in abortion rates in these subregions since 1990–1994.
• For Latin America, subregional abortion rates range from 33 in Central America to 48 in South America. Rates have increased slightly since 1990–1994, but not by statistically significant amounts.
• Abortion rates in Asia have also fallen since 1990–1994, although not significantly. Asia’s subregions all have rates close to the regional average of 36 per 1,000 women.
• Highly restrictive abortion laws are not associated with lower abortion rates. When countries are grouped according to the grounds under which the procedure is legal, the rate is 37 abortions per 1,000 women of childbearing age where it is prohibited altogether or allowed only to save a woman’s life, compared with 34 per 1,000 where it is available on request, a nonsignificant difference.
• High levels of unmet need for contraception help explain the prevalence of abortion in countries with restrictive abortion laws.

What I have researched from other appropriate sources agrees with Guttmacher but also indicates the below information on this subject:
The World Health Organization Research agrees with the Guttmacher Research. Their results are almost identical.
However, neither the W.H.O. or Guttmacher can give us a solid conclusion, due to lack of evidence, as to what happens when countries offer easy access to quality birth control but make their abortion laws stricter. This is due to the fact that most countries either are lenient on both issues or they are strict on access to both abortion and birth control.
We could make some confident speculation, based on the global evidence that does exist, that in countries, currently, where laws are strict for both abortion and birth control or where both are criminalized, that were these countries to loosen up laws on birth control access alone and not on abortion, the abortion rates would come down more, and likely closer to where the Western and developed nations are at. However, these countries are not necessarily or likely to get quite as low as the western, industrialized, countries since there does exist evidence that the mere difficulty of access to abortion alone lends, especially in certain cases, to higher abortion rates by itself.
Unfortunately, in the countries where the laws for abortion become much stricter than in the past, such as may exist in the U.S. for the future, the amount of abortions could increase quite a bit even if birth control access remains easy and free. One of the reasons this is true is due to the fact that, in these countries, many women who get pregnant in their later years, 40s or older, often now seek to get an amnio to see if their fetus is healthy. They can only get this during the late part of the 3rd month or beginning of the fourth month of their pregnancy. With stricter laws, some of these women may decide they don't want to take the chance the fetus is unhealthy or has downs syndrome, and instead may opt to get an early abortion thru more easily, anonymously obtained, although perhaps illegally obtained, abortion pills. These pills become not an option in later months, and testing would put women in a position to not be able to deny they are pregnant, publicly, if they wait, so this puts the women at risk they could be charged with a crime if abortion becomes illegal. (Please note: I am not suggesting this is right or moral or Christian behavior but only that the reality exist and I personally know quite a few women who would fit this category, today, in the U.S. despite anyone's opinions or beliefs)
A horrible side effect of the above situation is this: 50% of all downs fetuses naturally miscarry in the first trimester, and 40% that make it to the 2nd trimester miscarry then. Fetuses that have other severe health issues often miscarry, naturally, within the first three - four months of pregnancy as well. The amount of downs fetuses that become born infants are very small amounts even for older women. This illness is still quite rare overall. This means many women could end up aborting perfectly healthy fetuses, by the thousands, each year, or more, to avoid the possibility of having an unhealthy baby, and this number increases if women already have other children. One way some western countries avoid this issue is that they keep early abortions legal and allow later abortions into the 4th and 5th month if the fetus has tested unhealthy or the woman's life is in real danger if she remains pregnant. Many married older women think they aren't fertile when they still are and stop taking birth control.
Lastly, there is no existing evidence that easy access to abortions, even throughout pregnancy, equates to more abortions, in any country, that has free and easy access to birth control. In fact, countries with easy access to abortion and also free easy access to birth control have the lowest rates in the world, and these rates lower even more when those countries offer mandated longer paid maternity/paternity leaves, free quality universal health care, and free, quality, public daycare. (The only exception to this seems to be Sweden. Despite Sweden's similarly ease of access to both abortion and birth control and it's offering many of the benefits listed above that other Western European Countries offer, it still has quite a high abortion rate. However, there is no evidence suggesting that tightening Sweden's existing laws would lower its rate for abortion and doing so would likely only raise it even higher.)
The evidence we do have seems to indicate, on a global scale, that despite what seems reasonable in theory, i.e., harsh abortion laws will lower abortion rates, is completely false when put to the test in reality. It just may be that easy access to abortion, and lenient abortion laws, help more to reduce abortion rates than having strict laws against abortion, in any country. Perhaps some morality issues simply cannot be solved by force or threat but must instead be dealt with by respecting the situation of the people involved and helping them out of their place of fear or desperation, with physical and material protections and emotional and spiritual support. We could do much more perhaps by encouraging a choice for good, and for life, without attempting to control women. We could choose to help women in real ways, instead of trying to corner them into doing the Christian thing.

Michael Bindner
1 month ago

The Court could certainly overturn Roe, but if it did so by affirming the power of states to make these decisions, it would also bring down Hernandez (Latino rights as a protected class) Brown (desegregation), Griswold (contraception), Loving (interracial marriage), Perry (gay marriage - Obergfell was about federal law and Roberts hates to overturn these, including DOMA), Lawrence (sodomy), Roemer (gays as a protected class), Pence (fetal non-discrimination), education for undocumented K-12 and the Texas Trap Law case. The Alabama law seeks this result. I am sure there are Catholic bishops would be thrilled if gay rights and contraception fell too. Such decision would bring back Plessy v. Ferguson, which held that states are the venue to deal with equal protection questions resulting from state government acts if discrimination. This is both stupid and evil. It is pure doublespeak. Congress could conceivably grant legal personhood before viability, but such a law would apply in every state. It would also require that all fetal losses be investigated. Not doing so would violate the due process rights of women and their doctors to avoid selective enforcement.

It is a myth that the unborn. Technically, the rights to life in the Constitution are a protection against being killed without due process. It is why you cannot execute a pregnant woman.
They even have a right to criminal relief if they are killed in the injury or death of their mother. They do not have a right against their mothers. There is no civil right not to be murdered, especially if they are not legal persons. Not being murdered is a contractual right, not a civil one. To say otherwise would make government itself a civil right. No one on the right will put up with tat.

The reality is that there will likely be no more Roe cases. You cannot graduate law school or pass the bar without being able to explain privacy and Plessy. This has been the case for decades. Only Scalia disagreed. The Indiana case was decided Per Curiam, that is, the lower level Circuit court decision was affirmed with no hearing.
Only Thomas dissented. If Gee is decided the same way, it means that abortion will not be killed by a thousand cuts. The Court has no interest in hearing another Roe case and Congress will not act either.

Criminalizing abortion or granting the unborn rights at the expense of their mothers simply will not happen. The only avenue to decrease abortion is to give every child $1000 per month in refundable tax credits distributed with pay or government and educational benefits. Many in the pro-life movement draw the line at supporting redistribution of income, especially to subsidize the sexual activity of poor people. The challenge for the movement is to shout these people down and abandon the Republican Party.

Alan Johnstone
1 month ago

Well, this is quite good news as far as it goes.
I would prefer not just the abolition of civil sanction of murder of young human beings, but a mandatory life sentence without parole for all abortionists and confiscation of all their property.

It is about time the distorting notion of the rule by democracy was debunked and the re-establishment of a constitutional republic as the founding fathers intended came about.

Majority opinion is not a very good arbiter of justice or moral behaviour.

Michael Bindner
1 month ago

That opinion is why we do not put other people's rights to a vote. Roe is not going down unless Plessy is brought back, which never will and never should happen. Either endorse large tax credits for each child distributed with wages or throw the unborn under the bus to control sexuality and fight against socialism.

Ellen Boegel
1 month ago

A decision to overrule Roe v. Wade is unlikely to disrupt the decisions on which it was built, such as Griswold and Loving, or other fundamental rights decisions, such as Brown or even Obergefell; the Court would simply draw distinctions between those cases and Roe.

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