- The Washington Times
Friday, June 24, 2022

The Supreme Court overturned the landmark 1973 decision that established a constitutional right to abortion, ruling Friday that Roe v. Wade was wrong from the start and that the issue should be taken out of the courts and returned to the states.

Justice Samuel A. Alito Jr. said nearly a half-century of trying to make Roe work has proved futile, with Americans still sharply divided. Failing in both legal scholarship and its goal of settling passions, he said it’s time to cast the decision aside.


Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

The ruling does not outlaw abortion, but rather deletes the national constitutional bar that has existed for 49 years, largely relegating states to the sidelines.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Alito wrote. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”

Nearly half of the states have laws on the books that will impose deeper restrictions than Roe allowed, according to the Guttmacher Institute, an abortion-rights think tank. Some of those were “snap-back” laws designed to take effect when the high court issued its ruling.


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Other states, meanwhile, have vowed to become abortion sanctuaries, welcoming women from restrictive states.

The case before the court was over Mississippi’s law that generally banned abortion after 15 weeks of pregnancy, or well before the “viability” standard that has reigned since Roe and a key follow-up case, 1992’s Casey decision. Casey largely upheld Roe, though it gave states more flexibility to impose some restrictions.

The Supreme Court ruled 6-3 that the viability standard was wrong. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett Kavanaugh and Amy Coney Barrett all joined Justice Alito on that question. All were appointed by GOP presidents.

But Chief Justice Roberts said he would not have unraveled all of Roe at this point.

“The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” he wrote.

The court’s three Democrat-appointed members dissented, expressing “sorrow” for the court and for the country’s women in the wake of the decision.

“It says that from the very moment of fertilization, a woman has no rights to speak of,” they wrote in a jointly signed dissent.

They also warned of what might come next if the court could overturn a nearly 50-year-old decision in this way, saying rights to use contraception or same-sex marriage could be next.

The dissenters said Roe had been reaffirmed numerous times, including most notably in the Casey decision, and nothing has changed legally since then.

“Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted. The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the dissenters said.

Justice Kavanaugh, who joined Justice Alito, wrote his own opinion saying the ruling is limited only to abortion rights.

“I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” he said.

Justice Clarence Thomas, though, wrote in a concurrence that precedent involving same-sex relations, marriage and the right to contraception should be reevaluated at an appropriate time, reasoning those rulings rested on substantive due process, same argument used to preserve abortion in Roe.

“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote.

The country had a startling preview of the ruling early last month when Politico obtained a leaked draft of Justice Alito’s opinion.

In the intervening weeks, both sides have been preparing for the decision, with protests outside justices’ homes and attacks on pro-life pregnancy centers.

One California man has been charged with attempting to assassinate Justice Kavanaugh, having been arrested with a handgun and ammunition outside the justice’s suburban Maryland home.

Chief Justice Roberts has ordered an investigation into the opinion’s leak, which court watchers said is unprecedented in the 233-year history of the court.

The opinion came near the tail end of the court’s 2021-2022 session, and the justices earlier this week added the rare Friday opinion release day to their calendar, stoking expectation the abortion ruling would be released.

The case before the justices was Dobbs v. Jackson Women’s Health Organization and Mississippi’s law banned abortions after 15 weeks unless there is a medical emergency or severe abnormality within the fetus.

Mississippi officials acknowledged that conflicted with Roe, but said it was the 1973 decision that should be struck down, not their law.

The state said the viability standard for the fetus set out in Roe was unclear, and Mississippi had an interest in banning abortions after 15 weeks to protect women’s health and that of unborn children.

In Roe, the court speculated viability occurred around 24 to 28 weeks. However, in recent years a baby has been born as early as 21 weeks and survived.

The abortion providers who challenged the law said state’s interest in the woman’s health and children doesn’t begin until viability, which occurs “months” after the 15-week marker set in the law.

After Friday’s decision was handed down, Mississippi’s Attorney General Lynn Fitch, who argued for overturning Roe, said Roe v Wade now joins a “list of infamous cases that collapsed under the weight of their errors.”

“The Court has let loose its hold on abortion policymaking and given it back to the people. The task now falls to us to advocate for the laws that empower women — laws that promote fairness in child support and enhance enforcement of it, laws for childcare and workplace policies that support families, and laws that improve foster care and adoption,” she said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.


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