Introduction, Page 1: “For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens.
Friday’s historic opinion, written by Justice Samuel Alito and joined by the Supreme Court’s conservative bloc, overturns nearly 50 years of precedent. Alito’s guiding principle is that a right to an abortion cannot be found in the Constitution. He adheres to a legal philosophy known as “original intent,” which involves scrutinizing the founding document’s language to derive direction on contemporary issues. — JAN HOFFMAN
COMPLICATED, DIVERSE FEELINGS
Introduction, Page 4: Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability.
Americans do hold “passionate and widely divergent views on abortion,” as the court says, but their feelings are complicated. The Pew Research Center recently reported that 61% of Americans believe abortion should be legal in all or most circumstances — though many are open to restrictions — while 37% believe it should be illegal in all or most circumstances. Support for abortion is actually higher than it was a decade ago, but the partisan divide over it is growing wider. “The change in attitudes has come almost entirely among Democrats,” Pew said. — SHERYL GAY STOLBERG
Introduction, Pages 4, 5: Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
The idea behind this doctrine is to avoid destabilizing the law and breeding disrespect for the judiciary as too political. Even if the arrival of new justices on the Supreme Court shifts its ideological balance, the court is not supposed to revisit and overturn every precedent with which a new majority disagrees. But as Alito notes, the court nevertheless still does sometimes overturn precedents and has developed a five-factor test. Each supports overturning the constitutional right to an abortion, he argues — and will explain in greater detail later. — CHARLIE SAVAGE
OTHER COUNTRIES’ LAWS
Section I, Page 6: To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.”
This is accurate, based on the letter of international laws. But comparing gestational limits alone does not present a full picture of abortion access in different countries. Several countries that specify gestational limits also provide broad exceptions.
In Britain, for example, an abortion must be approved by two doctors, but those requests are generally granted. In Denmark and Germany, exceptions for a gestational limit of 12 weeks are made for mental and physical health as well as for life circumstances. — LINDA QIU
Section I., Page 7: It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practise, dangerous for the maternal patient, and demeaning to the medical profession.”
Dilation and evacuation is the most common procedure used in second-trimester abortions; the procedure is generally considered the safest for most women in that stage of pregnancy.
According to a 2018 report by the National Academies of Sciences, Engineering and Medicine, dilation and extraction is “effective with minimal rates of complications, ranging from 0.05 to 4 per cent.” The American College of Obstetricians and Gynecologists has said the procedure “results in fewer medical complications than other abortion procedures, and often is necessary to preserve a woman’s health or her future fertility.” — LINDA QIU
Section II., A. 1., Page 10: We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications.
Many legal scholars have reasoned that Roe should have been argued as an equal-protection right for women, along the lines that Justice Ruth Bader Ginsberg would present as a lawyer before the Supreme Court shortly after Roe was decided. Alito says that because the right to abortion was not based in such reasoning, judges who evaluate laws regulating it need not apply a level of scrutiny that extend to laws based on gender. — JAN HOFFMAN
Section II., A. 2., Page 11: Ginsburg’s opinion for the Court in Timbs is a recent example. In concluding that the Eighth Amendment’s protection against excessive fines is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition,” her opinion traced the right back to Magna Carta, Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the ratification of the Fourteenth Amendment.
It is notable that the court is quoting Ginsburg, who famously expressed misgivings about Roe — even as she strongly supported the right to abortion. Ginsburg, whose death in 2020 cleared the way for the court’s 6-3 conservative majority, felt the Supreme Court decided Roe before the nation was ready for it. She wished there had been time for a consensus to build in the states. “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said at the University of Chicago in 2013. — SHERYL GAY STOLBERG
Section II., B. 1., Page 15: Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.
In 1959, the American Law Institute, an independent group of legal scholars, judges and lawyers, began drafting model legislation to decriminalize abortion in some instances. The effort was, in part, a recognition that the law needed to catch up with medical practice: Many hospitals had committees to determine which cases merited a “therapeutic abortion,” a process that gave some doctors protection from prosecution but which was applied inconsistently. Before Roe, at least 13 states adopted versions of the model law, a few of which were more expansive than Roe itself. — JAN HOFFMAN
‘NOT DEEPLY ROOTED’
Section II., B. 2. d., Page 25: The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
Based on Alito’s premise that the 14th Amendment does not protect any unwritten rights to liberty that were not understood to exist deep in the nation’s history, as discussed above, he now reaches the culmination of his main analysis. Having listed numerous laws before and during the 19th century that banned abortion — some after “quickening,” an antiquated term for when movement in the womb is detectable, and some at all stages of pregnancy — he concludes that no one back then thought there was a right to abortion. — CHARLIE SAVAGE
A DOCTOR’S JUDGMENT
Section II., C. 1., Page 31: Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.”
Roe was also concerned with the relationship between doctors and patients, and a doctor’s decision-making authority. Justice Harry Blackmun wrote, “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.” The Supreme Court is weighing the tension between a doctor’s best judgment and state regulatory authority in another case, Ruan v. United States, about excessive prescription of opioids. — JAN HOFFMAN
Section II., B. 2. d., Page 33: Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance.
A federal law requires businesses with 50 employees or more to provide up to 12 weeks of unpaid family and medical leave. Data from the Bureau of Labor Statistics shows that while nearly 90% of workers had access to unpaid leave in 20121, less than one-quarter of workers had access to paid leave. The United States is the only country without a paid family leave program among the 38 that are members of the Organization for Economic Cooperation and Development, which provided an average of 50 weeks of paid leave in 2020.
The Affordable Care Act requires insurers to cover maternity and newborn care as an essential health benefit. But recent studies have found that out-of-pocket costs for care still average more than $3,000 for women with employer-sponsored insurance, and 95% of births covered by insurance require some out-of-pocket costs. — LINDA QIU
JUSTIFYING OVERRULING PRECEDENT
Section III., Page 40: Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. In so doing, the Court overruled the infamous decision in Plessy v. Ferguson (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule.
Arguing that respect for precedent does not preclude the Supreme Court from ever overturning one of its past rulings, Alito points to a long line of rulings that did so — starting with the most venerated landmark civil rights decision in American history, the 1954 case striking down racial segregation in schools. — CHARLIE SAVAGE
Section III., B. 1. c., Pages 51-52: The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years.
Viability, the point in a pregnancy when a fetus could survive outside the womb, has changed slightly with medical advances. For decades, the viability point was considered to be about 24 weeks into a pregnancy; now it can often be at 23 weeks’ gestation and occasionally as early as 22 weeks, with rare cases of babies surviving if delivered at 21 weeks’ gestation.
But the characteristics of a fetus still prevent viability much earlier than that because important phases of development of the brain and other organs don’t occur until well beyond the first trimester. There is no possibility of fetal viability at 15 weeks, the point at which the Mississippi law would outlaw most abortions in the state. Nor did Mississippi officials claim that a baby could survive at that stage. — PAM BELLUCK
CALLING ON WOMEN
Section III., E. 2., Page 65: Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.
It is interesting to see the court suggest that the future of abortion rights rests solely with women in the political sphere. Public opinion polling shows that views of abortion among women roughly track the views of all Americans; 61% of women characterize themselves as “pro-choice,” and 33% consider themselves “pro-life,” according to a long-running Gallup survey. Men are evenly split: 48% “pro-choice” and 47% “pro-life.” (Those are Gallup’s descriptors; many news organizations, including the Times, use more neutral terms, distinguishing between those who support and oppose abortion rights.) — SHERYL GAY STOLBERG
Section III., E. 3., Page 66: And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
The claim by Alito that this ruling does not jeopardise other modern-era rights that derived from the same legal reasoning — like sex between consenting adults of the same sex and the right of same-sex couples to marry — has been widely criticized as unpersuasive since the time it appeared in the leaked draft. After all, matters like rights for same-sex couples have no deep historical basis and, in some people’s minds, also raise critical moral questions.
Justice Clarence Thomas, in his concurring opinion, took aim at three landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal nationwide; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. — CHARLIE SAVAGE AND SHERYL GAY STOLBERG
Section V., B. 1., Page 72: We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.”
Chief Justice John Roberts voted with the majority but wrote separately to point out that he felt the court went beyond what it was asked to do. Mississippi wanted to sidestep Roe’s viability framework and restrict abortion after 15 weeks. The chief justice is a longtime proponent of “judicial restraint” and a defender of the integrity of the court’s legal traditions. Although he wrote that viability was not a constitutionally sound construct, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” — JAN HOFFMAN
FETAL AND MATERNAL CONDITION
Section VI., A., Page 78: A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
Alito says almost nothing about what should happen when a physician deems an abortion medically necessary, letting the states determine such thresholds. The dissenting justices raise this concern. “States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm,” they say. And later, “The majority does not say — which is itself ominous — whether a state may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment.” — JAN HOFFMAN
The idea that fetuses can feel pain during abortion is highly controversial and generally not supported by most scientists who have expressed views on the subject. Most scientists who have examined the issue say that if fetuses can feel pain, the neurological wiring to make that possible is not in place until at least 24 weeks into a pregnancy, which is later than nearly all abortions could occur under the Roe v. Wade standard. As a result, most of these scientists say, banning abortions earlier than 24 weeks, or altogether, to spare fetuses from feeling pain, is not supported by the science of fetal development. — PAM BELLUCK