The decision divided the United States into pro-life and pro-choice camps and is still controversial. Pro-life supporters argue that the unborn baby has the same right to life as other people and that the government should intervene to protect it. Pro-choice supporters believe that the unborn baby is not the same as a person, that the woman has the right to choose what she wants to do with her body and that the government should not intervene.
Roe v. Wade was limited by a later decision, Webster v. Reproductive Health Services (1989), which allowed the regulation of abortion in some cases. Several states have considered laws banning abortions altogether.[4]
In May 2022, a draft of the Supreme Court's decision to overrule Roe v. Wade was leaked to the media.[5] On June 24, 2022, the Supreme Court overturned Roe v. Wade.[6]
Claiming to be a single woman and pregnant, McCorvey wanted to terminate her pregnancy.[8] She could not get a legal abortion in Texas because her life was not in danger. She wanted it to be done safely by a doctor but said that she could not afford to travel outside Texas. Her lawsuit claimed that the Texas law violated her right to privacy, which was protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.[8] Roe added that she sued "on behalf of herself and all other women" in the same situation.[8]
The case slowly made its way to the US Supreme Court. Meanwhile, McCorvey had her baby and placed it for adoption.[9]
Majority opinion
In a 7-2 decision, the court held that a woman's right to an abortion was protected by her right to privacy under the Fourteenth Amendment.[3] The decision allowed a woman to decide whether or not to have an abortion during the first trimester.[3] That affected the laws of 46 states.[3]
Justice Harry Blackmun wrote the majority opinion:[3] "We... acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires."[10]
He pointed out that there was no legitimateplaintiff in the case, which was a requirement to hear the case. A legitimate plaintiff would have been a woman in the first trimester of her pregnancy at some point while the case was being tried. McCorvey (Jane Roe) did not fit that qualification and so the ruling had no application to the case.[11]
The court recognized a woman's right to abortion under the general "right to privacy" from previous cases. However, he argued, "A transaction such as this is hardly 'private' in the ordinary usage of the word."[11]
The majority opinion was vague on the exact place of the right to privacy in the Constitution. Several amendments were mentioned, but none was specifically identified to contain the right to privacy. The word "privacy" is not found in the Constitution.[11]
Additional problems include the court acting as a legislature in dividing pregnancy into three trimesters and outlining the permissible restrictions that states may make.[11] He pointed out that 36 of the 37 states in 1868, when the Fourteenth Amendment was passed, had laws against abortion, including Texas: "The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."[11]
Right to privacy interpretation
The basis for the "right to privacy" is a judicial interpretation that can be traced from an earlier case Griswold v. Connecticut (1965).[12] In that landmark case, the Supreme Court ruled that a Connecticut law against the use of contraceptives violated the right to privacy, as found in the Constitution.[12] However, the right to privacy is not directly mentioned in the Constitution.[13] The Supreme Court decided that the right to privacy is implied by several amendments. In 1923, the court interpreted the "liberty" guarantee in the Fourteenth Amendment as a broad right to privacy.[14] Justice William O. Douglas stated the guarantees of the right to privacy had penumbras (implied rights) "formed by emanations (a flowing) from those guarantees that help give them life and substance."[15]
Trimester concept
In its decision, the court used the three-trimester framework of pregnancy.[12] During the first trimester, an abortion was safer for the mother than childbirth.[12] The reasoning was that the decision of whether to get an abortion at that stage should be left up to the mother to decide.[12] Any law that interfered with abortions in the first trimester would be presumed to be unconstitutional.[12] During the second trimester, laws could regulate abortion only to protect the health of the mother.[12] During the third trimester, the unborn child was viable and so could live on its own, outside the mother's womb.[12] Then, laws could restrict or prohibit abortions unless it was necessary to preserve the mother's health. That doctrine stood until 1992,[12] when Planned Parenthood v. Casey had the court now base the legality of an abortion no longer on trimesters but on fetal viability.[16]
Overruling
The case, Docket Number 19-1392,Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organizatione et al. started being argued on December 1, 2021.[17]
On May 2, 2022, Politico was given a leaked initial draft majority opinion written by Justice Samuel Alito suggesting that the Supreme Court is and will overturn Roe and Casey in a pending final decision on Dobbs v. Jackson Women's Health Organization.[18] The leak also renewed calls on the US Senate to pass legislation already passed by the House of Representatives to codify the rights created by Roe before the Dobbs decision is formally published.[5]
On June 24, 2022, Roe v. Wade was formally struck down by the Supreme Court.[17] The opinion officially released was almost identical to the leaked version on May 2, 2022. Because Chief Justice Roberts "concurring in judgment," the outcome has been put as 5-4 or 6-3 (technically, it is 6-3) and either way effectively overturned Roe v. Wade. The following are the opinions:
Justice Gorsuch - There is no direct concurrence or dissent from Justice Gorsuch. Throughout the opinion, he concurs with some of the opinions and dissents with some of the opinions presented by the Court.[23][24][25][26]
This opinion has now given the power to the individual states on what laws they want on abortion.
Justice 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.[31]
Justices Kagan, Sotomayor, and Breyer stated in their dissenting opinion
With sorrow -- for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection -- we dissent.[31]
During a speech at the White House, given shortly after the opinion was released, US President Joe Biden stated in part:[31][32]
...the health and life of women in this nation are now at risk... ...It's a sad day for the court and for the country...
US Vice PresidentKamala Harris stated in a pre-scheduled briefing about the future of women's maternity care had to reverse course and she stated in her briefing:[33]
This is a healthcare crisis, because understand: Millions of women in America will go to bed tonight without access to the healthcare and reproductive care that they had this morning; without access to the same healthcare or reproductive healthcare that their mothers and grandmothers had for 50 years.
This is the first time in the history of our nation that a constitutional right has been taken from the people of America. And what is that right? — some might ask. It’s the right to privacy.
↑"Penumbra". The Free Dictionary/Farlex. Retrieved February 15, 2016.
↑Danielle Keats Morris, 'Planned Parenthood v. Casey: From U.S. "Rights Talk" to Western European "Responsibility Talk"', Fordham International Law Journal, Volume 16, Issue 3 (1992), pp. 772–773
