SCOTUS Overturns Roe v. Wade

Jun 24, 2022

Today, the U.S. Supreme Court voted 5-4 to overturn the 1973 Roe v. Wade and 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey abortion decisions. 

Justice Alito authored the opinion of the Court, overturning Roe v. Wade and Planned Parenthood v. Casey. Justice Alito was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts authored a concurring opinion saying that he agreed that the viability standard had no basis in the Constitution and that it should be discarded, but he did not vote to overturn Roe and Casey. Justices Breyer, Sotomayor, and Kagan jointly authored a dissent to the opinion. 

There is nothing in the Constitution about abortion, and the Constitution does not implicitly protect the right. In fact, the Constitution protects the fundamental right to life, which was enshrined in the Nation’s birth certificate – the Declaration of Independence. The Court holds that "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." 

Justice Thomas writes separately to reiterate his view that the due process clause also does not protect a right to an abortion. He says the Court needs to dispense with the nonsense of substantive due process. “As I have previously explained, ‘substantive due process’ is an oxymoron that lacks any basis in the Constitution.” Indeed, “[t]he notion that a constitutional provision that guarantees only process before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most causal user of words.” 

“The resolution of this case is thus straightforward. Because the Due Process Claus does not secure any substantive rights, it does not secure a right to abortion.” 

He says in future cases the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

Justice Kavanaugh has a separate concurring opinion, arguing that the Constitution is neutral on abortion, and so the Court was wrong in Roe to weigh in and take a side. 

The Chief Justice’s opinion concurring in the judgment says the Court should have held that the viability line (the idea that the Constitution protects a right to an abortion until the fetus becomes viable) has no basis in the Constitution, so Mississippi’s law would be held constitutional. Chief Justice Roberts argued the Court should not have decided anything else. "Both the Court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share." 

This is regarding the case, Dobbs v. Jackson Women’s Health Organization, concerning a Mississippi law, known as the Gestational Age Act, enacted in 2018 that prohibits abortions after 15 weeks gestation, except in a medical emergency and in cases of severe fetal abnormality. The Supreme Court now sends the abortion issue back to the individual states. 

The 79-page opinion by Justice Alito wrote, “Roe was egregiously wrong from the start. We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” 

The opinion continues: “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.” 

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 High Court wrote, Planned Parenthood v. Casey “concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s ‘central holding’—that a State may not constitutionally protect fetal life before ‘viability’—even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law. . . . Paradoxically, the judgment in Casey did a fair amount of overruling…But the three Justices who authored the controlling opinion ‘called the contending sides of a national controversy to end their national division’ by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. . . . As has become increasingly apparent in the intervening years, Casey did not achieve that goal.” 

“The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ . . . [A]bortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what the decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being,’” wrote the Court. 

The Justices note that the Constitution provides no textual right to abortion. The opinion states, “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text. . . . Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is a part of a right to privacy, which is also not mentioned…[Roe’s] message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.” 

“The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” 

In the conclusion of the opinion, the High Court washes its hands of the abortion issue and sends it to the states to address. 

“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Liberty Counsel filed an amicus brief on behalf of a diverse group of organizations, churches, religious leaders, and individuals, including 70,000 African American and Hispanic churches and millions of African Americans and Hispanic Americans across the United States, who are asking the Supreme Court to overturn Roe because legalized abortion is unconstitutional, violates the right to life, and supports racist eugenics. 

The High Court also cites to Liberty Counsel’s amicus brief in footnote 41. The Court notes that the  brief argues that the roots of abortion are “motivated by a desire to suppress the size of the African American population.” This information was uniquely presented in Liberty Counsel’s amicus brief Brief for Amici Curiae African-American, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organization and Leaders Supporting Petitioners. The opinion continues, “And it is beyond dispute that Roe had had that demographic effect. A highly disproportional percentage of aborted fetuses are black.” 

Liberty Counsel Founder and Chairman Mat Staver said, “We celebrate the immense victory of the High Court overturning Roe v. Wade. For many years, I have confidently said that I will live to see the Supreme Court overturn Roe v. Wade. We are now witnessing an historic event that will reverberate around the world. The abortion decisions did incalculable damage to the Supreme Court’s integrity because they were wrongly decided and have no connection with the Constitution. And the carnage left in the wake of Roe v. Wade cannot be measured. May God forgive and heal our land for this great sin. May God be praised for His faithfulness in seeing the hand of protection once again extended to the life of every unborn child in womb. May God protect the Justices of the United States Supreme Court.” 

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