The End of Roe v. Wade

Posted in: Reproductive Law

On June 24, 2022, the Supreme Court eliminated the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization.

That right was first recognized 49 years earlier, in 1973, in the landmark decision in Roe v. Wade. It was reaffirmed in 1992, in Planned Parenthood v. Casey, and has been applied by the Supreme Court in more than a dozen cases spanning almost five full decades. Yet, after Donald Trump’s appointments to the Court effected a sharp, rightward shift, the Supreme Court overruled the entire body of abortion jurisprudence in one fell swoop in the Dobbs case.

The Dobbs opinion is a man-made earthquake, the reverberations of which will be felt deeply and broadly. In this column, I’ll look backward to explain what came before Dobbs—and how this watershed opinion changes not only the legal landscape but our constitutional conception of what it means to be full members of society. In future columns, I will explore the effects on access to abortion across the country, as well as the legal issues likely to arise in a politically polarized country such as ours.

From Griswold to Roe

Roe v. Wade was argued before the Supreme Court first in 1971, and then again in 1972. The Court issued its monumental ruling in January 1973. There were three sets of plaintiffs in the case who sued to challenge a Texas law, which criminalized attempted or completed abortion unless necessary to save the pregnant woman’s life.

The first and most important plaintiff was Jane Roe—a pseudonym for a woman later revealed to be Norma McCorvey, who would become active in the anti-abortion movement—a 21-year-old woman from a troubled background, pregnant with her third child and recently divorced from an abusive man. According to her complaint, she wished “to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions,” but that she was unable to under Texas law because her life did not appear to be threatened and because she could not afford to travel to a state where abortion was legal.

The wheels of justice move much too slowly for a fast-developing pregnancy. Jane gave birth to the child in question and placed it for adoption. Although the federal courts cannot hear cases that do not involve an actual controversy, the Court made an exception to the mootness doctrine for the abortion issue since pregnancy was “capable of repetition, yet evading review.” Other challengers included a doctor who was arrested multiple times under the abortion law and had prosecutions pending against him; and a childless married couple who wanted to know that they would have the opportunity to terminate a pregnancy if necessary because the wife had a medical condition and had been advised to avoid pregnancy unless and until it was successfully treated.

The essence of the claim in Roe was that the Texas law criminalizing abortion in virtually all circumstances violated the federal Constitution. (State laws on any subject must comply with federal constitutional principles that have been deemed applicable to the states.) They argued that the plaintiff had a constitutional right to terminate her pregnancy under the Fourteenth Amendment, specifically the Due Process Clause, which guarantees individual “liberty.” The Fourteenth Amendment contains no specifics; the Supreme Court determines its content through cases.

At the time Roe was argued, the Court had twice ruled that the Due Process Clause protected certain personal rights under the umbrella of a “right to privacy.” The Due Process Clause also has a procedural component, which has been interpreted to mean that the government cannot take away life, liberty, or property without due process of law—i.e., it cannot send you to jail without a fair trial. But as early as the 1920s, the Supreme Court recognized that the concept of due process included a substantive component as well, which meant, in essence, that some rights are so fundamental to what it means to be an autonomous person that the government cannot take them away regardless of how many procedural safeguards are provided. For fundamental rights, the government can only infringe upon them with a compelling reason and proof that the infringement is necessary to serve that interest. This concept, called substantive due process, had been invoked in three cases to protect the right of parents to the care, custody, and control of their children, one as early as 1923. It was also invoked in a case in 1942, Skinner v. Oklahoma, in which the Court held that Oklahoma could not use castration as criminal punishment for theft but not embezzlement because the right to procreate was “one of the basic civil rights of man.” Whether it could be restricted in some cases or not, the Court deemed it too important a right to be taken away arbitrarily from one class of thieves but not another.

Skinner marked the first time the Supreme Court recognized that decisions about reproduction were constitutionally protected in some way. But by the time the Court decided Roe in 1973, it had twice applied the principles of substantive due process to cases involving sexual privacy. In 1965, in Griswold v. Connecticut, the Supreme Court struck down a Connecticut law banning the sale of contraceptives to married couples. The Connecticut law challenged in Griswold made it a crime for any person to use “any drug, medicinal article or instrument for the purpose of preventing conception” or for any person to assist or abet another person’s use of contraception. To stage a challenge to the law, a doctor and an executive at Planned Parenthood opened a clinic in New Haven, through which they gave “information, instruction, and medical advice to ‘married persons’ as to the means of preventing conception.” They then “examined the wife and prescribed the best contraceptive device or material for her use.” The doctor and clinic director were arrested and convicted under these statutes, the constitutionality of which they challenged.

The question for the Supreme Court, then, was whether the state of Connecticut could criminalize the distribution and use of contraception by married couples. In a blissfully short majority opinion, Justice William O. Douglas described the many different provisions of the Constitution that supported a more general right to privacy—the right against unreasonable search and seizure, the right to freely associate, the right to raise children without interference from the government, for example. The statute in this case, Justice Douglas wrote, “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” And in criminalizing not only the sale of contraceptives, but their use, Connecticut sought to achieve its goals—restricting sex to reproductive purposes—with “a maximum destructive impact upon that relationship.” Would Connecticut have the police “search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Surely, he concluded, the “very idea is repulsive to the notions of privacy surrounding the marriage relationship.” And keeping the police out of those sacred precincts was one function of “a right of privacy older than the Bill of Rights.”

Then, in 1972, while Roe was pending, it ruled in Eisenstadt v. Baird that unmarried individuals had the same right of access to birth control. The Massachusetts law challenged in Eisenstadt v. Baird criminalized only the distribution of contraceptives to unmarried persons. But the Supreme Court wrote, in an opinion by Justice William J. Brennan, that the right of privacy was a right of individuals, married or not. The decision whether to have a baby was to remain free of “unwarranted governmental intrusion.” There was a right of privacy, the Court said, that included the right to decide whether to “bear or beget” a child.

The leap from Griswold to Eisenstadt was significant, as American law had long developed and reinforced a norm that sex could occur legitimately only within marriage. But once the Court recognized that right to make decisions about procreation as belonging to the individual—rather than just to a married couple as an entity—it did not require much additional movement to get to the ruling in Roe v. Wade the following year. Griswold, Eisenstadt, and Roe were all decisions that were grappling with the social and technological changes in society that both made it more possible to control reproduction and also shaped people’s attitudes about sexual and reproductive freedom. The development of the birth control pill, which was first available in the United States in 1960, meant that women could engage in sexual activity with at least some protection against unwanted pregnancy. This dovetailed with the burgeoning women’s rights movement, which fought to break down barriers to education, employment, and economic independence. It also both fueled and reinforced the sexual freedom movement of the 1960s, which led to the sharp rise in cohabitation in the 1970s, a gradual destigmatizing of unwed motherhood, and vast changes in the traditional American family.

The states that found themselves defending laws in the Supreme Court were clinging to the notion that criminal law could be used to enforce an outdated moral code. The Supreme Court ruled in case after case that the Constitution, through the Due Process Clause, protected the right of individuals to make those decisions for themselves. Society was changing, and along with it, the expectations that people had for what it means to live a full and meaningful life.

From Roe to Casey: Developing the Right of Abortion

When the Supreme Court agreed to review the lower court’s opinion in Roe v. Wade, a movement to liberalize abortion laws was solidly underway. Despite the history told by the majority in Dobbs—an inartful collection of cherry-picked facts recited in an ahistorical fashion—the history of abortion access in the United States has not been linear. At common law, there were few restrictions on abortion, especially before “quickening,” or the time when fetal movements were perceptible, around 16 to 18 weeks of gestation. The criminal bans were the product of a much later time—the latter half of the nineteenth century, in most cases. But during the decade leading up to Roe, those bans were disappearing. Abortion bans had been narrowed or repealed in about one third of the states during the 1960s and early 1970s. And the remaining bans became unenforceable after Justice Harry Blackmun declared in Roe v. Wade that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point.

Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. This ruling had the obvious effect of invalidating a large number of laws banning or restrictively regulating abortion—or preventing those laws from being applied to certain situations.

Roe was not an end-of-an-era case, however. Opposition persisted, perhaps as a sort of backlash to the Supreme Court’s having jumped ahead of public opinion or perhaps because people continued to disagree about whether abortion should be available on demand, sometimes, or never. It goes without saying that many people’s beliefs on all sides of the abortion issue were and are strongly held—but also that abortion was a pawn in the political game that has led to our current dysfunctional, polarized state.

On the constitutional front, the Supreme Court heard many abortion cases in the 1980s in which it curtailed the broad right it had announced in Roe. It upheld a federal law excluding Medicaid coverage for abortion (the Hyde Amendment), and a state law disallowing the use of public buildings for abortion even if the procedure was paid for privately. In one of the few instances of federal legislation to support abortion access, Congress enacted the Freedom of Access to Clinic Entrances Act (F.A.C.E.) in 1994, a direct response to an escalating pattern of violence that included murders of abortion providers, as well as hundreds of assaults, death threats, bombings, and so on. The law permits protesters to assemble, shout, sing, and otherwise express their message of disapproval, but it does not permit them to use threats or physical force to impede access to the clinic.

The strand of anti-abortion activism that survived this era, and slowly strengthened, was more peaceful, but just as focused on impeding abortion access. Opponents of legal abortion lobbied, with great success, for state laws restricting abortion. State legislatures began passing laws that were deliberately in tension with, if not outright inconsistent with, Roe. The hope was that a newly composed Supreme Court would simply overturn the ruling—and return the issue of abortion to the states, which had shown increasingly conservative tendencies on the issue.

A challenge to the Pennsylvania Abortion Control Act led to the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey, which, to the surprise and dismay of abortion opponents, reaffirmed the basic principle in Roe that women have a constitutional right to terminate a pregnancy within certain constraints. The plurality in Casey, though, while speaking strongly about the importance of stare decisis—a legal concept that protects reliance by hesitating to overturn settled law—did restructure the framework for analyzing whether government regulation of abortion infringed a woman’s right to seek an abortion or not.

Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the Court wrote in Casey, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option) but struck down a provision requiring married women to notify their husbands before obtaining an abortion.

Casey seemed to put to rest the longstanding question whether the Court would overrule Roe. It had the chance—and the potential votes to do so—but it didn’t. But the question persisted as state legislatures began to pass laws clearly inconsistent with Roe in the hopes of baiting the Court to reconsider the issue yet again. The long game paid off for abortion opponents, as thirty years later, they got what they had sought in Casey—a decision declaring that there is no constitutional protection for abortion. While the opinion in Casey “saved” Roe, it did so in a way that allowed anti-abortion activists to slowly chip away at abortion access. The joint opinion in Casey weakened the basic right by upholding some restrictions on abortion that might have seemed obviously in tension with Roe and inviting the constant barrage of attacks. And once the door was ajar, state legislatures came barreling through with restrictive abortion laws.

Common abortion-specific rules and restrictions include: (1) abortions must be performed by licensed physicians and in hospitals after a certain point in pregnancy; (2) doctors and hospitals can refuse to perform abortions based on “conscience”; (3) some methods of abortion cannot be used; (4) doctors cannot use “telemedicine” to prescribe medicine necessary to induce early-stage abortions in patients who cannot get to a doctor in person; (5) women must receive mandatory counseling prior to obtaining an abortion with the counseling involving a state-mandated script that the doctor must read, whether he or she agrees with it or not; (6) the woman must wait between 24 and 72 hours, sandwiched between two in-person visits to a clinic before obtaining an abortion; (7) the doctor must report information about abortions to the state; (8) minors must obtain parental consent or the consent of a judge; (9) no federal funding can be used to pay for abortion except in rare cases, and, in most states, no state funding can be used either; (10) abortion facilities must meet the architectural and licensing regulations of hospitals, even though other outpatient facilities are not required to (so-called “TRAP” laws); and (11) abortion providers must have admitting privileges at a local hospital.

Courts have permitted many of these restrictions to stand. The only exception is TRAP laws, which the Supreme Court threw doubt on in Whole Woman’s Health v. Hellerstedt in 2016 (discussed here) and again in June Medical Services v. Russo in 2020 (discussed here). In those opinions, the majority held that it was an undue burden to impose requirements that caused many clinics to close while adding no benefit to the safety of abortion care.

Anti-abortion activists were undeterred, and conservative legislatures began passing abortion bans that were clearly inconsistent with the standards set forth in Roe and Casey. The Mississippi law at the center of the Dobbs case is one of those laws.

From Casey to Dobbs

Until last week, there seemed to be one line that held steady: a state could not ban pre-viability abortions. Although many states passed such laws in the last decade, every single one was blocked by courts. The lone exception was Texas’s SB 8, which used a novel structure to evade judicial review and effectively limit abortion to the first few weeks of pregnancy. (The law is analyzed here; despite two trips to the Supreme Court, it was allowed to stay in effect even before the Supreme Court eliminated the right to abortion).

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court agreed to answer the question whether all bans on pre-viability abortions are unconstitutional. The question arose in the context of a Mississippi law, which banned abortion after the fifteenth week of gestation. Viability, as a concept, means the gestational stage at which a fetus might survive outside the womb with available medical support and intervention. In the United States, viability under this meaning occurs around the end of twenty-four weeks of gestation. There is no question that a ban on abortions after the fifteenth week is in part a ban on pre-viability abortions.

The Mississippi law was upheld by a vote of 6-3. Justice Samuel Alito wrote the majority opinion—a draft of which was leaked to the press two months earlier—and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined it. Those five joined an opinion that overruled Roe v. Wade and Planned Parenthood v. Casey on the grounds that despite five decades of jurisprudence holding to the contrary, there is no constitutional right to abortion at any point in pregnancy. Justice Thomas wrote separately with a “hell, yea” and stating that he would vote to overrule Griswold also, as well as the two cases that recognized a right to same-sex relationships and marriage. The sixth vote to uphold the Mississippi law came from Chief Justice John Roberts, who concurred in the judgment but wrote separately to say he would have discarded the viability line but still upheld the 15-week ban on grounds that it did not impose an undue burden on people seeking abortions. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor jointly wrote a dissent, in which they denounced the holding, the reasoning, and the Court’s total disregard for women’s lives.

There will be much written on the Dobbs opinion in the days, months, and years to come. But its importance is captured in a few simple sentences:

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. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion does not fall within this category.

And just like that, the constitutional right to abortion is gone. The protection that was part and parcel of an era that gave women greater control over reproduction—and thus facilitated their greater integration into the labor force and other aspects of life outside the home—has been swept away. The abortion issue is now left to the states, about half of which have acted or are expected to act to criminalize it.

The Court in Casey recognized that women’s struggle for equality turns a great deal on their unique role in reproduction. It drew this connection explicitly, noting that the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” The majority in Dobbs hardly seemed to acknowledge women at all, other than as vessels for nurturing the unborn. And with this ruling, it has returned women to the service of society, rather than allowing them the dignity of an autonomous life. The fallout from this abrupt reversal of course has only just begun.

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