The U.S. Supreme Court has overturned the landmark Roe v. Wade ruling that has guaranteed the right to an abortion for more than 50 years, creating a grim new reality for women’s health in the country while granting a significant victory to religious conservatives.
In a 5-4 decision Friday, the top court upheld a Mississippi law that would ban most abortions after the 15th week, while also abolishing the legal precedent Roe v. Wade established in 1973 and the 1992 decision that reaffirmed it, Planned Parenthood v. Casey.
Chief Justice John Roberts sided with the court’s three liberal-leaning justices, unable to sway even one member of the solid conservative majority that was fortified by three appointees of former president Donald Trump.
The question of whether abortions are legal will now be left up to individual states, which will lead to widespread differences in access across the U.S.
“Let’s be very clear, the health and life of women across this nation are now at risk,” President Joe Biden said from the White House on what he called “a sad day for the court and the country.”
The court’s decision on the Mississippi case had been foretold since May, when Politico published a draft opinion from Justice Samuel Alito that called Roe v. Wade “egregious from the start” and argued it should never have been treated as precedent.
In the final opinion issued Friday that was very similar to the leaked draft, Alito did not sway from that argument.
“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” Alito wrote.
Yet Justice Clarence Thomas went even further, writing a separate opinion in which he explicitly called on his colleagues to put the Supreme Court’s same-sex marriage, gay sex and contraception cases on the table.
In his remarks, Biden pointed to Thomas’ opinion as a dire example of the “extreme and dangerous path this court is taking us on.”
Although the court warned Alito’s leaked opinion, which had been written in February, was an early draft and would evolve before the final decision was released, it sent shockwaves through the country and sparked mass pro-choice protests.
Protesters on both sides of the debate immediately gathered in front of the Supreme Court and in cities across the country following the decision. Some organizers were calling for protests outside the homes of justices who voted to overturn Roe.
In Canada, dozens of demonstrators gathered outside the U.S. Embassy in Ottawa to show solidarity with American women, some of whom may choose to travel north for care.
The decision puts the court at odds with a majority of Americans who favored preserving Roe, according to opinion polls.
“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 liberal justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote.
The trio warned that abortion opponents now could pursue a nationwide ban “from the moment of conception and without exceptions for rape or incest.”
Roberts wrote that while he agreed the Mississippi law should be upheld, he felt there was no need to overturn Roe in order to do so.
Attorney General Merrick Garland said the Justice Department “will work tirelessly to protect and advance reproductive freedom.” He said in a statement that in addition to protecting providers and those seeking abortions in states where it is legal “we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care.”
In particular, Garland said that the federal Food and Drug Administration has approved the use of Mifepristone for medication abortions.
“States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.
An attempt by Congress to enshrine the right to an abortion as federal law, along with other women’s health protections, died in the Senate days after the draft was leaked due to Republican opposition.
Marjorie Dannenfelser, president of SBA Pro-Life America, echoed some Republicans who suggested the fight to further restrict abortion rights was just beginning.
“An entirely new pro-life movement begins today. We are ready to go on offense for life in every single one of those legislative bodies, in each statehouse and the White House,” Dannenfelser said in a statement.
House Republican Leader Kevin McCarthy on Friday would not rule out the possibility of seeking to pass a federal ban on abortion if his party takes control of Congress in November’s midterm elections.
Biden and other Democrats said that threat made it crucial for voters to ensure Republicans don’t take power.
“Congress must act, and with your vote, you can act,” Biden said. “You can have the final word.”
The overturning of Roe v. Wade will be immediately felt in several states.
Thirteen states — including Texas, Louisiana, Kentucky and Tennessee — have so-called “trigger laws” in place that ban abortion entirely, and are written to go into effect within a month of the Supreme Court’s ruling. Some include financial penalties or prison sentences for patients and medical practitioners who perform an abortion.
Pregnant women considering an abortion were already dealing with a near-complete ban in Oklahoma and a prohibition after roughly six weeks in Texas.
Clinics in at least two other states, Wisconsin and West Virginia, stopped performing abortions after Friday’s decision Both states have laws on the books banning abortion that date back to the 1800s.
Alabama Attorney General Steve Marshall said laws “that have not been (stopped) by a court” are in full effect, appearing to refer to a 1951 ban on abortion that predates Roe.
Another dozen states are likely to follow suit and pass similar bans, according to the Guttmacher Institute, a think tank that supports abortion rights.
Some of those states, such as Florida, have recently passed bills that ban most abortions as they waited for the Supreme Court to rule on the Mississippi case. Those laws are more likely to withstand court challenges in the wake Roe v. Wade’s downfall.
Only some of those laws make exceptions for rape and incest, while most say they will allow abortions only if the mother’s life is at stake if they try to give birth.
Sixteen states as well as Washington, D.C., have laws in place that protect the right to abortion, including California, New York and most of the U.S. northeast.
Abortion advocates have warned the banning of abortions in some states will force women seeking the procedure to travel to more permissible states and countries. That could overwhelm providers in those jurisdictions and put an undue financial and medical burden on women, those advocates say.
In Canada — where abortion is decriminalized but not enshrined into law and access varies — experts have predicted an American surge could lead to increased wait times and shortages of abortion pills.
Biden said his administration would try to ensure that abortion medication is available as widely as possible and women aren’t prevented from traveling across state lines to end pregnancies.
U.S. companies including Disney and Facebook parent Meta said on Friday they will cover employees’ expenses if they have to travel for abortion services.
Public Safety Minister Marco Mendicino said last month that he will ensure border agents allow Americans to come to Canada for care.
A decision long fought for
Pro-life advocates and religious conservatives have spent the decades since Roe v. Wade was decided trying to get it overturned, working to install judges to the Supreme Court who aligned with their stance on abortion.
Past legal challenges have been rejected by the court or have failed, including in 1992, when justices ruled in favour of maintaining a woman’s right to choose in Planned Parenthood v. Casey, despite allowing more regulation by the states.
Yet the appointment of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the bench by Trump — all of whom have voiced opposition to abortion — saw conservative states pass a flurry of new abortion restrictions that would automatically face court challenges.
In a statement, Trump took credit for Friday’s decision, saying overturning Roe and other recent rulings by the court “were only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court. It was my great honor to do so!”
The Mississippi case was the first one the Supreme Court agreed to hear, and in oral arguments last December, Trump’s nominees along with Alito and Thomas — both of whom have long argued against Roe — hinted they were leaning toward siding with the state’s restrictive abortion law.
Gorsuch, Kavanaugh and Barrett were included on a list of judges approved by the Federalist Society, a conservative legal organization that promotes a strict and traditionalist reading of the U.S. Constitution.
Although Barrett has been vocal about her opposition to abortion, Gorsuch and Kavanaugh told senators during their confirmation hearings that they would respect the precedent created by Roe v. Wade and Planned Parenthood v. Casey, which they said was “settled law.”