By Stephanie K. Baer BuzzFeed News Reporter
The Supreme Court struck down the landmark decision that legalized abortion nationwide Friday in a drastic reversal of nearly 50 years of precedent protecting people’s right to decide for themselves whether to continue or end an unwanted pregnancy.
In a 6–3 decision authored by Justice Samuel Alito, the court overturned its 1973 opinion in Roe v. Wade and upheld Mississippi’s 15-week abortion ban, meaning that states will now have the ability to completely outlaw — and criminalize — the medical procedure.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote. “That is what the Constitution and the rule of law demand.”
The decision will undoubtedly cause chaos for pregnant people, healthcare providers, and courts nationwide as they navigate a post-Roe world. Though abortion will remain legal in states like California and New York, which have laws that protect reproductive rights, large swaths of the South and Midwest are expected to eliminate abortion access. Those who live in areas where abortion is illegal and can afford to travel will likely go out of state to get care. But, as in the wake of Texas’s six-week ban, those patients may overwhelm facilities in areas where abortion is protected, causing delays for everyone. And for millions of people with low incomes, who are disproportionately people of color, safe and legal reproductive care may be out of reach.
With Roe out of the way, 26 states are expected to ban abortion early in pregnancy or outright, according to the Guttmacher Institute, an abortion rights research and advocacy group that tracks state legislation. Of those, 13 states, including Texas, Wyoming, Oklahoma, and Mississippi, have already passed so-called trigger laws, which are designed to take effect now that Roe has fallen or through quick state action.
Abortion care will continue to be accessible in at least 16 states and the District of Columbia, which have laws in place that protect the right to abortion. Medication abortions, which have grown to account for more than half of all abortions in the US, are also still an option — though they too face opposition from anti-abortion legislators. And abortion funds can help people who need to cover travel costs to access care out of state.
“There are groups that exist to make sure that we can get you to a place where abortion is still accessible and make sure you have everything needed to make the healthcare decision that best works for you,” said Emma Hernández, a spokesperson for the reproductive justice nonprofit group We Testify.
The ruling comes weeks after the leak of an early draft opinion that indicated Justice Samuel Alito and other members of the Supreme Court’s conservative majority were in favor of overruling Roe and Planned Parenthood v. Casey, the 1992 opinion that reaffirmed Roe and revised the standards that federal courts use to decide if state restrictions on abortion are lawful.
The draft opinion, which was published by Politico, largely adopted the state of Mississippi’s arguments — and language — in Dobbs v. Jackson Women’s Health Organization, saying that Roe was “egregiously wrong” and that Casey had failed to settle the issue. In the 98-page document, Alito wrote that because the Constitution does not explicitly reference abortion and because abortion is “fundamentally different” from other rights recognized by the court, the issue should be left to the states.
The leak represented a massive breach of Supreme Court protocol and sparked uproar for revealing that the court’s conservative majority was willing to tear down abortion protections that have been in place for decades.
Though conservative justices seemed poised to rule in favor of Mississippi and chip away at abortion rights during the Dobbs arguments in December, they appeared to be split on the idea of overturning Roe and Casey as their liberal colleagues warned the decision could harm not only the country, but the Supreme Court as an institution.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.
The right to abortion has been critical for gender equality, attorneys for the Center for Reproductive Rights and others argued in briefs to the court. Reversing Roe may also reverse major gains for women and endanger the lives of pregnant people. Individuals who are denied abortions face greater health risks associated with continued pregnancy and childbirth, lost educational opportunities, and economic insecurity, they argued.
Advocates also fear that overruling Roe could spell disaster for other rights identified by the Supreme Court. In Roe, the court determined that the right to privacy guaranteed under the 14th Amendment protected a pregnant person’s liberty to choose for themself whether to have an abortion. The same reasoning was applied in landmark decisions protecting marriage for same-sex couples, interracial marriage, and access to contraception.
“It’s kind of opened the door to saying that none of these things are actually rooted in the Constitution which means states should essentially be able to decide,” Aziza Ahmed, a law professor at the University of California, Irvine, told BuzzFeed News. “It does feel like a minority rule type of situation where a minority of the country is claiming democratic process but actually to establish a set of rules that only the minority wants.”
In Dobbs, the state of Mississippi called on the Supreme Court to overturn Roe and Casey, which said restrictions cannot place an “undue burden” on access. Casey also upheld the idea that states cannot ban abortion before viability, which is usually around 24 weeks of pregnancy. The state’s attorneys had argued that the Constitution does not protect the right to abortion and the court’s requirement that state law not place an “undue burden” on abortion access unfairly impedes states from creating local abortion regulations.
“A right to abortion is not grounded in the text,” Mississippi Solicitor General Scott Stewart said during the Dec. 1 arguments. “It’s grounded on abstract concepts.”
Friday’s ruling marked the first time the justices have ruled on the constitutionality of a law that prohibits abortion before a fetus is viable since Roe. It was also the first major abortion case decided on by the court since the conservative majority grew to 6–3 with the confirmation of Justice Amy Coney Barrett in 2020.
Though the right to an abortion had been considered a settled matter of law, the ruling is the product of yearslong effort by anti-abortion activists to get the issue back before the Supreme Court with the explicit goal of overturning Roe. After Donald Trump won the presidency in 2016, conservative lawmakers and anti-abortion advocates put the plan into action, passing pre-viability bans they knew would be blocked by the lower courts in the hopes that the laws would eventually get to the nation’s highest court. Then last year, following Barrett’s confirmation, the Supreme Court agreed to hear Mississippi’s case.
