The end of Roe

Samuel Alito's opinion overturning the constitutional right to an abortion, leaked in May, became the Supreme Court's majority opinion Friday. It's as bad as we thought — and will get worse.

Jun 24, 2022

The Supreme Court is in the background as people protest in the street. A sign, "SHAME on SCOTUS," is in the foreground. — The scene in front of the Supreme Court on June 24, 2022.

With one decision on Friday, the Supreme Court ended the 49-year-old right to an abortion that the Supreme Court first declared in Roe v. Wade and upheld many times in many cases since then.

I’ll have much more on all of the aspects of this ruling and its consequences and implications, so read this, primarily, as a first take on the expansive nature of the ruling, and thank you for reading and subscribing.

IT IS LAW: The draft opinion from Justice Samuel Alito, leaked in early May, became the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization on Friday with few changes. If earlier rulings were landmark decisions protecting women and other pregnant people’s rights, Friday’s decision did more than just take the landmarks off the map. Instead, Alito laid out a path for how states can guarantee that abortion restrictions — no matter how severe — will be protected by the court’s five-justice reactionary majority.

Abortion regulations — at any point in a pregnancy — will only be subject to the court’s lowest level of review: rational basis.

"Under our precedents, rational-basis review is the appro- priate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. See supra, at 8–39. It follows that the States may regulate abortion for legit- imate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their so- cial and economic beliefs for the judgment of legislative bod- ies.” Ferguson, 372 U. S., at 729–730; see also Dandridge v. Williams, 397 U. S. 471, 484–486 (1970); United States v. Carolene Products Co., 304 U. S. 144, 152 (1938). That re- spect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 365–368 (2001) (“treatment of the disabled”); Glucksberg, 521 U. S., at 728 (“assisted suicide”); San Antonio Independent School Dist. v. Rodri- guez, 411 U. S. 1, 32–35, 55 (1973) (“financing public edu- cation”)."

Getting rid of any doubt, Alito continues, these laws will be presumptively valid.

Further still, he gives state lawmakers a list of “legitimate interests” that the court says will guarantee that abortion restrictions are upheld. They include “interests” that are so vague — like preserving “the integrity of the medical profession” — as to justify virtually any imaginable restriction.

THREE VOICES AS ONE: The powerful dissent — a joint dissent from Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — makes clear their fear about the implications of Alito’s decision, writing that “States will feel free to enact all manner of restrictions.”

In addition to banning abortion “from the moment of fertilization,” the dissent details that, under the court’s ruling, states can — and already have — banned medication abortion. “Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.”

Enforcement, too, they warn could be extreme, from criminalizing providers to criminalizing women and other pregnant people seeking abortions.

"Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so."

The dissent goes on to warn of further restrictions, including so-called “extraterritorial” enforcement and the possibility of a national abortion ban.

"The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases. Ante, at 79. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a pro- cedure. Above all others, women lacking financial re- sources will suffer from today’s decision. In any event, in- terstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abor- tion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter."

WILL ANY RESTRICTIONS FALL: The only (apparent) hope for stopping extreme restrictions or punishments going forward comes from the three Democratic appointees — when the court recesses for the Summer, Breyer will be retiring and will be replaced by Judge Ketanji Brown Jackson — and the possible votes of Chief Justice John Roberts and Justice Brett Kavanaugh.

Roberts didn’t join Alito’s opinion, writing that he “would take a more measured course” and not overturn Roe (for now, at least). Roberts would have eliminated Roe’s viability standard, though, and voted to uphold Mississippi’s 15-week abortion ban at issue in Dobbs. And though he wouldn’t have overturned Roe on Friday, it’s not clear how he’ll respond in future cases now that the majority has done so.

Kavanaugh, while joining Alito’s opinion, also wrote separately — to defend his decision to join Alito, in part, but also to write about “the future implications of today’s decision.” Specifically, he wrote about two extreme possibilities that he thought would be unconstitutional:

as I see it, some of the other abortion-related le- gal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause. Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964).

Kavanaugh did not, however, signal any substantial disagreement with Alito’s standard for looking at abortion restrictions going forward and would likely uphold all but the most extreme ones that violate another constitutional provision.

(There also could be a point where criminal punishments might find opposition from Justice Neil Gorsuch, given his record on the court, but he did not write in Dobbs, so there is nothing in the Dobbs decision itself to indicate any daylight between his views and Alito’s opinion for the court.)

In the course of a few minutes on Friday morning, the right to an abortion that had been recognized for nearly 50 years turned to this — discussion of whether states can now ban travel to seek an abortion or whether state can criminalize past abortions.

OTHER RIGHTS: None of this, moreover, addresses the effect that this decision could have on other “substantive due process” rights cases — specifically, those involving contraception, same-sex sexual intimacy, and marriage equality.

Although Justice Clarence Thomas in his own concurring opinion Friday explicitly called for those cases to be overturned as well, Alito, in the court’s opinion, and Kavanaugh, in his concurring opinion, specifically disclaimed that the Dobbs ruling has any affect on those cases.

The dissent, for their part, questions that disclaimer, warning that “no one should be confident that this majority is done with its work.”

FRIDAY: This is what the end of Roe looks like.