Supreme Court overturns federal abortion rights

The U.S. Supreme Court on Friday reversed the court’s Roe v. Wade decision granting women the federal right to an abortion in the United States. The 5-4 decision sends authority to regulate abortion back to the states.

The final opinion, which upheld a Mississippi law banning abortion after 15 weeks, was an expected but nonetheless stunning end to 50 years of federal abortion rights for women throughout the country. The decision doesn’t end rights granted in individual states, and abortion is still legal in California.

“The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 are overruled; the authority to regulate abortion is returned to the people and their elected representatives,” the court wrote.

In justifying its decision, the majority wrote: “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.”

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the decision continued. “The 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.”

Reaction was swift to the court’s opinion.

“An ultra-conservative Supreme Court, far out of touch with the American people, just took away the rights of millions of women to control their own bodies. We will steadfastly protect the right to abortion in California. This is a dark day in America,” state Assembly member Marc Berman wrote in a tweet.

State Sen. Josh Becker also posted an emotional video on Friday morning.

State Sen. Josh Becker reacts to the Supreme Court’s decision to overturn Roe v. Wade on June 24, 2022.

“This is a depressing day in American history, indeed. The thought that my daughter and her generation may grow up without the protections that we’ve had, the rights that we’ve had for the last 50 years, is really, really a tough moment.

“California will be a sanctuary state both for our residents, of course, and we’re working on access and cost but also for the women who are coming — the tens of thousands of women that we know are going to come from other states,” he said.

On Monday, the legislature passed SCA 10, a constitutional amendment to enshrine the right to abortion services and the right to choice in the state constitution, he noted.

“And now we are going further with a package of bills by the Women’s Caucus — and I’m proud to be a principal author of one of them — to address cost and accessibility, including growing the abortion workforce. We’re going to have to do that. We have to prepare for the tens of thousands and perhaps hundreds of thousands of women that we know are going to come. We will keep fighting,” he said.

U.S. Rep. Anna Eshoo also weighed in through a written statement.

“Today, for the first time in history, the Supreme Court eliminated a constitutional right. This decision is cruel. With Roe gone, Republicans will now charge full speed ahead with their plans to ban abortion nationwide, arrest doctors for offering reproductive care and criminalize contraception, including in-vitro fertilization and post-miscarriage care. I’m devastated that today my daughter has less freedom than I did. The Court has put itself on trial. Democrats will not stop fighting to enshrine Roe v. Wade into law, and voters will not let this stand come November,” she said.

Legal analysis of the decision

Stanford Law School Professor Henry T. (Hank) Greely, director of Stanford Center for Biomedical Ethics, predicted during an interview just prior to Friday’s decision that the court would completely overturn Roe v. Wade and say there is no federal constitutional right to an abortion.

Abortion rights are “a corpse whose ventilator will be disconnected” in the coming year on a state-by-state basis, he said.

“States like California … will probably make it easier for people from another state to come in. States like Oklahoma and Texas and Mississippi, but also some of the Upper Midwest, some of the Midwest states will ban it and make it illegal,” he said.

Greely said it’s likely that there will be a workaround through the use of abortion pills.

“I think that we will see a growth in the use of the abortion pills. But those aren’t supposed to be used after about 10 weeks of pregnancy, although that’s the most common period for women to have abortions; a substantial chunk of abortions happened after 10 weeks. Very, very few happened after 20 weeks, 1% or so.

It’s not clear how safe it is to use the abortion pill after 10 weeks, he said.

“I must state that some of the states with the most stringent laws may end up modifying them to include, say, rape and incest exceptions or make clear the health of the mother exception or maybe even establish early time limits like 10 weeks or six weeks instead of zero weeks,” he said.

But passage of laws might be limited in their overall effectiveness, he said.

“I think it’s very easy for legislators to pass very, very stringent laws that they know won’t go into effect, that make the 20% of their constituents who are strongly pro life happy and don’t really change the world in any way. The pill makes enforcing a ban much harder on the states that will ban it. And some of the states that have banned it may loosen their laws a little bit,” he said.

Socially and politically, Greely said he it’s unclear how the Supreme Court decision will play out but predicted that the most passionate advocates will become even more politically active.

“This is one of those issues that minorities (of people) on both sides care very, very deeply about. Most of the population will have a view one way or the other, but it’s not something as important to them as the price of gasoline. I doubt that there will be major political swings based on this,” he said.

But there could be political consequences. Empowering or mobilizing a small number of people can end up having major political effects, even if most of the people don’t feel strongly one way or the other, he said.

“I don’t feel confident making any prediction about what the long-term political effects will be. Short term, the pro-abortion forces will be very motivated, and will work very hard,” he said. Exactly how that would play out isn’t clear, but they would likely work on state legislatures and maybe Senate seats.

“But it’s hard to overturn a Supreme Court decision. It took the anti-abortion people 49 years to overturn Roe. I think the pro-life people, the anti-abortion people, will feel empowered and emboldened by their success, which is an impressive success,” he said.

“But I think they’re also going to be faced with the question, ‘Where do they go from here?’ And for many of them, they probably don’t go anywhere. For many of them, the goal was ending abortion if they’ve ended abortion in their state, or at least passed laws,” he said.

“Even if the practice of abortion ended, given the availability of the pill, I think they’ll say OK, good, mission accomplished. Go back to something else. But there will be some, some people who will want to continue, continue to push the borders: of protecting embryos, of protecting fertilized eggs, and who will push farther. So I think there’ll be small groups — small but not trivial groups — of people who will be strongly motivated by this result in opposite directions,” he said.

Greely said thus far he doesn’t see a law that would effectively make it illegal for a woman to travel to another state to receive an abortion, while some bills might be introduced.

“I think they would run into a lot of political resistance to that and particularly from relatively well-off people who think that their spouses or partners or daughters might want to go across the border from Missouri to Illinois to have an abortion,” he said.

There are substantial constitutional questions to trying to enforce a law that would ban an activity done in another state where the activity is legal.

“I would have said over the last 50 years that those (laws) probably would be held unconstitutional as violating the rights of Americans to travel from place to place and do things in one state that they can’t do otherwise. Nobody has ever tried to punish their citizens for doing gambling that would be illegal in their state if they do it in Las Vegas. So I think there would have been serious constitutional questions. I think there are still serious constitutional questions,” he said.

But he didn’t know how the current Supreme Court would react if such laws were passed.

“I don’t know of any way to know how these five — the five most conservative (justices) — would react to it. I think the three liberal justices plus Chief Justice Roberts would be very sympathetic to the view. You can’t constitutionally criminalize in one state something somebody does in another state,” he said.

Stanford Law School Constitutional scholar and professor Jane Schacter wrote in an online essay that the court’s decision is “seismic” and will potentially have additional consequences down the line.

“Justice (Samuel) Alito’s opinion emphasizes that states can now choose their policy on this contested issue and Justice (Brett) Kavanaugh’s concurrence goes out of its way to emphasize that point. But Kavanaugh explicitly raises the specter of a national legislative response. His opinion, which seems meant to emphasize that states are still free to choose their own resolution of the abortion question, is far from reassuring with its reference to a role for Congress in reproductive rights. He is foreshadowing what is inevitable: a drive for Congress to enact a national ban on abortion. Indeed, calls for a national ban picked up steam as soon as the Dobbs opinion was leaked. Such a ban would put a quick end to any federalism-inspired notion that different states can choose different policies on this fraught subject. Kavanaugh’s reference to such a national ban at least suggests that he sees in the Constitution a basis for congressional authority to enact such a ban.”

Schacter added that the same constitutional doctrine, the 14th Amendment, which supported the Roe and Casey decisions cited in the justices’ opinion also supports other important rights, including access to birth control, a right to be intimate with the partner of your choice and marriage equality. If the justices’ same reasoning is applied to those other rights, it certainly would jeopardize them, she said.

In a statement on Friday morning, Stanford University School of Medicine Dean Lloyd Minor and Vaden Health Services Executive Director Jim Jacobs said that as a university and academic medical center operating in California, Stanford abides by California state laws, which require that comprehensive reproductive care is available to patients and provide legal protections for those seeking these services.

“We want to affirm that today’s Supreme Court decision does not impact any of the campus health or well-being resources available to our students, faculty, or staff. Our programs and services will continue unchanged. The same applies for patients seeking comprehensive reproductive care services at Stanford Medicine’s hospitals and clinics throughout the Bay Area. We continue to abide by California laws and will keep providing these services in support of women’s health and health equity for all those who rely on this access regardless of identity.

Minor and Jacobs acknowledged that this is a time of significant change.

“We expect there will be passionate debates in the days ahead and that many of you will participate — and lead — these discussions. Every member of our community has the right to participate in the civic process and express their opinions. We also want to encourage all to engage with empathy and grace during this time. While this landmark decision will have far-reaching consequences, it does not change our community’s fundamental values, nor our commitment to our missions of research, teaching, and patient care.”

The statement also included resources for mental health and well being for individuals and families in the face of the decision.

In a statement on Friday, San Francisco Archbishop Salvatore J. Cordileone praised the Supreme Court’s ruling.

“‘The arc of history is long but it bends toward justice.’ Never have the words the Rev. Martin Luther King, the great prophet of human rights in the 20th century, rung more true. This historic Supreme Court decision would not have happened without 50 years of patient, loving, hard work by people of all faiths and none, in diverse fields including social service, religion, law, medicine, culture, education, policy and politics. But our work has just begun. The artificial barriers the Supreme Court created by erecting a so-called constitutional right out of thin air have been removed. The struggle to demonstrate we can build a culture that respects every human life, including mothers in crisis pregnancies and the babies they carry, continues. We must redouble our efforts to accompany women and couples who are facing unexpected or difficult pregnancies, as well as to offer mercy to those suffering the after-effects of the abortion experience. Our Lady of Guadalupe, patroness of the unborn, pray for us.”