The impact promises to be transformational. Twenty-six states either will or are likely to ban almost all abortions, according to the Guttmacher Institute, a research organization that backs abortion rights. Thirteen have so-called trigger laws designed to automatically outlaw abortion if Roe is overturned.
The outcome tracks a draft majority opinion Politico obtained and published May 3. Writing for the majority, Justice Samuel Alito said the Roe court “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Alito in the majority. Chief Justice John Roberts said he would have upheld the Mississippi law but stopped short of directly overturning Roe.
The court’s three Democratic appointees – Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — filed a joint dissent in a highly unusual move.
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the group wrote. They closed by saying: “With sorrow — for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
The White House had no immediate comment.
Hundreds of demonstrators were gathered outside the Supreme Court as the decision came in. The crowds included anti-abortion and abortion-rights supporters who were shouting and holding signs.
The ruling fulfills a decades-old dream for legal and religious conservatives, capping a half-century fight to overrule one of the most controversial opinions in US history. The majority also overturned Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe and laid out what has been the controlling law ever since. Casey said the Constitution’s 14th Amendment barred states from imposing significant restrictions until fetal viability, roughly 23 weeks into pregnancy.
Abortion-rights supporters say overturning Roe will have a devastating impact, threatening decades of economic gain for women and depriving millions of the right to make deeply personal health-care decisions. They say the effect will be especially large for Black and Hispanic women, who are more likely to lack the funds and ability to take time off work to travel out of state for an abortion.
The decision is likely to unleash battles on multiple new fronts, including efforts to block patients from traveling to clinics across state lines and from receiving abortion-inducing pills by mail. Other fights will center on the status of long-dormant abortion laws, including a 1931 Michigan ban. Lawmakers in anti-abortion states will have to decide whether to make exceptions for cases of rape or incest and whether to impose criminal penalties on people who get abortions.
As he did in his draft opinion, Alito said Roe was “egregiously wrong” and “on a collision course with the Constitution from the day it was decided.” Alito said that because the Constitution doesn’t explicitly mention the right to abortion, it needed to be “deeply rooted in the nation’s history and traditions” to be protected.
He said that throughout American history, most states criminalized abortion in at least some stages of pregnancy and the “vast majority” criminalized it in 1868, when the 14th Amendment was adopted.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions,” Alito wrote. ”On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Many historians have disputed Alito’s reading of US history, arguing that until the middle of the 19th century states generally put no restrictions on abortion.
Roberts said he would have taken a “more measured course” than his fellow conservatives, discarding the viability line but leaving the core abortion right in place.
The abortion right should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further — certainly not all the way to viability,” he wrote.
The joint dissent blasted the majority for focusing so heavily on historical protections.
“When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship,” the dissenters wrote.
A majority of the U.S. public has consistently supported keeping abortion legal in all or at least some cases since the mid-1970s, according to Gallup data, while only about one in five Americans say the procedure should be illegal under all circumstances. A Gallup poll conducted in May found that 55% of Americans identify as “pro-choice,” the highest level since 1955.
The case is Dobbs v. Jackson Women’s Health Organization, 19-1392.