How the Supreme Court went from entrenching abortion rights in Roe v. Wade to crafting their demise


The US Supreme Court is seen through a high fence installed during the night following out-of-court protests after the leaked opinion indicating the possibility of overturning the Roe v. Wade decision on abortion rights, in Washington, May 5, 2022.

Evelyn Hochstein | Reuters

Federal protection for her abortion rights held out legal Challenges For nearly half a century. But a draft Supreme Court opinion, revealed this week in unusual leakthe Supreme Court appears Prepare to break that long-running precedent.

The draft represents an astonishing shift from a court that has become more conservative during the Trump administration, even as Americans have grown more broadly more liberal In the years following the pivotal abortion rulings in Roe v. Wade in 1973 and in 1992, Planned Parenthood v. Casey.

Chief Justice John Roberts noted That first draft, drafted by conservative judge Samuel Alito and reported to have been distributed in February, does not represent a final verdict in the case. But the early leak of an opinion that would upend nearly 50 years of precedent is the culmination of decades of efforts by activists and lawmakers to challenge abortion at all levels, from An individual for constitutionality.

Here’s a look at what led to this moment:

before ro

at 98 page draft opinionAlito researched the history of abortion policies in the United States to reinforce his conclusion that Roe and Casey “should be abolished.”

Alito wrote that abortion is not a constitutionally protected right, noting that the constitution itself does not refer to abortion. While acknowledging that the Court interpreted the Fourteenth Amendment to guarantee certain rights not explicitly articulated, Alito cited a precedent stating that these rights must be deeply rooted in American tradition and “implicit in the concept of organized liberty.”

“The right to an abortion does not fall into this category,” Alito’s draft said. “Until the latter part of the twentieth century, there was no support in American law for the constitutional right to have an abortion. Zero. None.”

The judge wrote that abortion was prohibited in three-quarters of the states by the time the Fourteenth Amendment was adopted in the 1860s, and that 30 states banned the procedure in all stages of pregnancy by the time Roe was being debated in court.

But the American Historical Society, which prides itself on being the largest organization of its kind in the world, has argued that a 2021 court warrant that “American common law history and tradition support Roe v. Wade’s belief that a woman has a constitutional right” to choose an abortion.

The group said that early Americans followed English common law, which did not regulate abortion before the discovery of fetal movement – known at the time as “quickening”. This was the point at which the fetus was legally recognized as being separate from the pregnant woman, the group said, adding that common law reasoning about abortion persisted in the majority of states until the Civil War.

Abortion laws became stricter in many states in the mid-1800s, with the help of physicians in the American Medical Association. The group said these were motivated in part by concerns about the reproductive rates of Catholic immigrants and women’s avoidance of motherhood.

American Society for Legal History in separate summary He told the Supreme Court that abortions continued after those laws were passed, and accelerated during the Great Depression. This prompted some hospitals to formulate reasons to allow abortion, which “destabilizes an already controversial status quo,” the organization said.

Medical advances in the mid-20th century made pregnancy and childbirth safer for women, reducing the prevalence of abortion as a life-saving procedure. This, in turn, increased the risks of doctors performing abortions being sued. This led many doctors in the 1960s to call for abortion regulations to be relaxed, the organization said.

By the early 1970s, “pro-life and choice groups began making arguments rooted in the Constitution,” according to the summary.

Raw vs. Wade

In March 1970, a pregnant and unmarried Texas woman, identified at the time by the alias Jane Roe, filed a federal case against the Dallas District Attorney. She claimed that the state’s abortion law was unconstitutional. The law violated her right to personal privacy under the Constitution, alleged Roe, now known as Norma McCorvey.

The federal district court that heard the case struck down the Texas abortion law, writing that “the fundamental right of unmarried women to choose to have children is protected by the Ninth Amendment, by the Fourteenth Amendment.”

In January 1973, the Supreme Court in the rule 7-2 He asserted that the right to privacy, enshrined in the Due Process Clause of the Fourteenth Amendment, allows a person to choose to have an abortion up to the point of fetal survival. This line, which describes the point at which a fetus can survive outside the womb, was considered after about 24 weeks of gestation.

The court ruled that the government had “legitimate interests in protecting a pregnant woman’s health and human life potential,” and said the balance of those interests changed during each trimester of pregnancy.

Between Roe and Casey

The court has considered several abortion-related controversies in the years since her ruling in Rowe.

In the ruling of 1976 in Planned Parenthood vs. Danforththe court struck down parts of the Missouri abortion law that required a woman seeking an abortion to provide written consent from her husband or father if she was under 18 and unmarried.

Four years later, judges in Harris v. McRae upheld the Hyde Amendment, which limited the use of Federal Medicaid dollars to fund abortions.

In Webster v. Reproductive Health Services, the court ruled that a 1986 Missouri law did not violate the Constitution by prohibiting the use of public resources to perform abortions and requiring physicians to perform fetal viability tests if they believed the woman seeking an abortion was at least the one who was seeking an abortion. 20 weeks of pregnancy.

In 1990, the court ruled in Hodgson v. Minnesota that a provision of a state law prohibiting abortion for women under 18 until at least 48 hours after notifying her parents was unconstitutional.

The court ruled in Rust v. Sullivan in 1991 that the federal government is allowed to determine that Title X Family Planning Grant funds cannot be used for abortion-related services.

Planned Parenthood vs Casey

The Court’s 1992 opinion in the Casey case re-examined the basic principles of the precedent set by Roe.

The same case centered on a number of restrictive provisions in Pennsylvania’s abortion law. Among these are requirements that clinicians explain the potential negative consequences for women seeking abortions – known as informed consent – and that these women notify their husbands before undergoing the procedure, with some exceptions.

A federal district court prevented enforcement of these rulings, but the US Court of Appeals upheld most of them. Repealed the requirement to notify the spouse.

The case was brought before a more conservative group of judges than the group that decided Roe. But in a broken ruling 5 to 4, the court reaffirmed Roe’s essence, enshrining the right to choose an abortion before the fetus survives.

However, the judges have abandoned the trimester timeline for Roe and set a new standard: that any government regulations regarding abortion before the point of fetal survival should not impose an “undue burden” on a woman’s right to choose.

Dobbs vs. Women’s Health Jackson

The court has ruled in abortion cases since Casey, including a 2007 ruling upholding a federal ban on late-term abortion and, most recently, a ruling allowing for challenges in Texas’ restrictive abortion law. To move forward in federal court.

But even before a draft of Alito’s opinion was leaked, Dobbs v. Jackson Women’s Health Organization as the biggest challenge to abortion rights in decades.

The case, which focuses on a Mississippi law banning nearly all abortions after 15 weeks of pregnancy, directly asked the courts to drop Roe and Casey.

The case was brought before a 6-3, conservative majority court, after the appointment of three judges nominated by former President Donald Trump.

In oral arguments in December, governors in court He looked ready to take on Rowe and Casey. Liberal justices have sounded the alarm that reversing decades of abortion rights would destroy public perception of the court.

Alito’s draft opinion said the court’s “flagrantly wrong” decisions on abortion had already had “grave consequences”.

“Far from a national settlement of the abortion issue, Roe and Casey have ignited controversy and deepened the division,” Alito wrote.

The American Legal History Association, in its “friend of the court” brief filed in Dobbs, disagreed.

“While the conflict surrounding abortion rights has certainly escalated since Roe’s decision, the apparent bitterness and stubbornness in the debate stem from many other factors, including political party polarization, negative partisanship, and changing Supreme Court nominations politics,” the organization said.

Recent polls indicate that most Americans support abortion rights in most cases. A larger percentage of adults oppose most abortions in states preparing to quickly ban the procedure if Roe is overturned, According to the New York Times.

Thirteen states have passed so-called excitement laws that would do just that. Up to 26 countries Expected to impose new restrictions on abortion If Ro and Casey have already been hit, according to Leading a reproductive rights advocacy group.

A final opinion in Dobbs’ case is expected towards the end of the court’s term in late June or early July.

If Roe v. Wade Falls: Travel distance for people seeking abortion

Guttmacher Institute

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