EXPLAINER: The Overturning of Roe v. Wade

By Carl Sebastian P. Arabiran

In a 5-4 decision, the Supreme Court of the United States (SCOTUS) voted to overturn Roe v. Wade on June 24, 2022, altering nearly 50 years of legal precedent that granted the women of the United States a constitutional right to abortion since 1973.

Although the process of terminating a pregnancy exists in a place of conflicting discussions regarding the ascendancy of a fetus’ putative personhood over a woman’s liberty to choose or vice versa, one must develop an educated understanding of the matter at hand. Here are the facts you need to know about the current state of abortion care in the United States.

Rights Established

The case originated in 1970, when Norma McCorvey, under the alias "Jane Roe," filed a class action lawsuit against Henry Wade, Dallas’ district attorney, calling the constitutionality of the Texas criminal abortion laws into question. The state’s laws during that time forbid a woman from seeking abortion care unless they were medically advised to do so or it was to save the mother’s life. 

Roe claimed that she was an unmarried pregnant woman who sought to terminate her pregnancy with the help of a licensed physician under safe clinical conditions. However, the State prevented her from seeking a legal abortion, as her life did not appear threatened by her pregnancy. Roe also alleged that she does not have the means to travel to another state and terminate her pregnancy. With this, she insisted that the state’s laws restricting abortion were unconstitutionally vague, limiting her right to privacy granted by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. 

A special three-judge court of the U.S. District Court for the Northern District of Texas heard the case and ruled in Roe’s favor, which led to the defendant appealing the case to the SCOTUS.

In a 7-2 ruling, the SCOTUS, on January 22, 1973, decided that extreme restrictions imposed by the state of Texas on seeking abortion care were unconstitutional. Citing the Fourteenth Amendment, the court, through a majority opinion penned by Justice Harry Blackmun, affirmed that the state’s laws criminalizing abortion blatantly violate a woman’s constitutional right of privacy—a right that is “broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

Throughout the opinion, the court also highlighted how harmful these restrictions could be to a woman. By denying their choice to get an abortion, the State overlooks the factors that are considered by the woman and her physician before terminating a pregnancy. These could be complications that may arise during pregnancy, a distressful life and future caused by maternity, the effect of child care on a woman’s mental and physical health, the distress imposed on the concerned parties associated with the unwanted child, the probability of bringing an unwanted child to a family that is not capable of caring for it, and, in the case of Roe, the stigma of bearing a child out of wedlock.

However, the court noted that the elements mentioned above do not bestow upon a woman an absolute right to terminate her pregnancy at her discretion. Furthermore, while the court recognizes one’s right of privacy, some state regulations on areas that recognize that right are reasonable. Therefore, at a point during pregnancy where a State’s interest in safeguarding health, in maintaining medical standards, and in protecting potential life, becomes compelling enough, they may uphold regulations of the factors that are considered on getting an abortion.

To consider a State’s interest to protect the health of the pregnant woman, the court determined that the decision to terminate a pregnancy may be left to the judgment of the pregnant woman’s physician prior to approximately the end of the first trimester. Subsequent to that point, the State may regulate abortion to promote their interest on protecting the health of the pregnant woman and the possibility of human life.

The Overturning

Although the extent of Roe v. Wade faced numerous challenges since 1973, none has successfully overturned it until Dobbs v. Jackson Women’s Health Organization was ruled last June 24, 2022.

The case originated in 2018, when Mississippi, the state appellate of the case, adopted the Gestational Age Act (HB 1510), which prohibited abortions after 15 weeks of pregnancy— well ahead of the point of fetal viability that the Supreme Court recognized in Roe v. Wade which is 24 weeks.

On March 2018, Mississippi’s only registered abortion clinic, Jackson Women’s Health Organization, filed a suit against state health officer Thomas E. Dobbs in the federal district court, questioning the legality of HB 1510. Granting the clinic’s motion for summary judgment, the lower court prevented the implementation of the law by upholding Planned Parenthood v. Casey, which prohibits any abortion ban prior to fetal viability or the first 24 weeks of pregnancy. The court held that: 

The record is clear: States may not ban abortions prior to viability; 15 weeks lmp (last menstrual period) is prior to viability;and plaintiffs provide abortion services to Mississippi residents after 15 weeks lmp.


The court permanently prohibited the enactment of the law. 

In December 2019, a three-judge panel of the US Court of Appeals for the Fifth Circuit maintained the district court’s ruling, as it upholds Roe v. Wade which granted a woman the constitutional right to terminate her pregnancy before viability. The court also highlighted that states might regulate abortion without putting any undue burden on the woman, but they may not ban it. HB 1510 was considered a ban by the Fifth Circuit, thus reaffirming the district court’s invalidation of the law.

The Fifth Circuit’s ruling was appealed to the Supreme Court, which agreed to review the case in May 2021, limiting the subject to the unconstitutionality of all pre-viability abortions. 

Mississippi urged the Supreme Court to overturn Roe v. Wade in a brief submitted in July, arguing that the preceding decisions were "egregiously wrong" in citing a right to pre-viability abortion in the Constitution, where abortion is not at all mentioned. Should the Court wish not to take that course, the state implored them to hold to the standards derived from Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) by finding that HB 1510 did not impose any undue burden on the women seeking to terminate their pregnancies. 

Supporting their claims, Mississippi argued that since Jackson Women’s Health Organization is the only abortion provider in their state, and does not administer abortions after the 16th week of pregnancy, the small reduction imposed by HB 1510 on the timeframe women can get an abortion will not be much of a burden. Oral arguments were presented in December.

The Supreme Court was supposed to announce its ruling on the case during the remainder of its 2021-2022 term. However, on May 2, 2022, a draft of the majority opinion written by Justice Samuel Alito Jr. was leaked by Politico, a political journalism company. The incident broke the long-standing confidentiality upheld in the Court’s deliberations and revealed that Justices Samuel Alito Jr., Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas voted to overturn Roe v. Wade.

As anticipated, the official ruling issued on June 24, 2022, authored by Justice Samuel Alito, affirmed that there is no constitutional right to abortion and that Roe and Casey must be overruled.

The Freedom Question

The ruling stirred varying emotions among Americans. Conservatives rejoiced in the decision as most considered it a massive moral and legal victory. However, a CBS News poll dated June 26, 2022, revealed that 52% of Americans regarded this ruling as a major step backward for the nation.

Subsequent to the overturning of Roe v. Wade, 13 states (i.e., Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming) immediately triggered their respective laws that restrict access to abortion, if not completely banning it.

As most states still have unenforced pre-Roe bans in their legislation, or early gestational bans merely blocked with court orders, the number of states extremely restricting access to abortion or completely banning it is expected only to go up to a total of 23 states.

Considering the steady rise in the need for abortion care in the United States, these bans will not be helping the American women at all. According to the most-recent data procured by the Guttmacher Institute, 930,160 pregnancies were terminated in the United States last 2020. These numbers carry an 8% increase from the 862, 320 abortions in 2017.

At the moment of writing, abortion care is most protected in Oregon, where access to the procedure remains unrestricted by gestational age. It is most restrictive, however, in states such as South Dakota, Oklahoma, Arkansas, Alabama, and Missouri, where it is banned with extremely limited exceptions. 

With the changes brought by the overturning of Roe v. Wade, many remain worried about the succeeding steps that will be taken by conservative activists. This landmark decision could fuel a much bigger fight that could induce threats to rights to same-sex marriage, interracial marriage, contraception, and more.

 

References:

BBC. (2022, June 24). Roe v Wade: What is US Supreme Court ruling on abortion? BBC. Retrieved July 2, 2022, from https://www.bbc.com/news/world-us-canada-54513499 

Bosman, J. (2022, June 29). For Many Women, Roe Was About More Than Abortion. It Was About Freedom. The New York Times. Retrieved June 30, 2022, from https://www.nytimes.com/2022/06/29/us/women-abortion-roe-wade.html 

Britannica. (2022, June 24). Roe v. Wade | Summary, Origins, & Influence. Encyclopedia Britannica. Retrieved July 2, 2022, from https://www.britannica.com/event/Roe-v-Wade 

Brittanica. (2022, June 24). Planned Parenthood of Southeastern Pennsylvania v. Casey | Summary, Origins, & Influence. Encyclopedia Britannica. Retrieved July 2, 2022, from https://www.britannica.com/event/Planned-Parenthood-of-Southeastern-Pennsylvania-v-Casey 

Clary, T. A. (2022, June 24). The End of Roe v. Wade: What You Need to Know About Abortion Access. The New Yorker. Retrieved June 30, 2022, from https://www.newyorker.com/newsletter/the-daily/the-end-of-roe-v-wade-what-you-need-to-know-about-abortion-access 

Cornell Law School. (n.d.). Jane ROE, et al., Appellants, v. Henry WADE. Legal Information Institute. Retrieved June 30, 2022, from https://www.law.cornell.edu/supremecourt/text/410/113 

Cornell Law School. (2021, December 1). Dobbs v. Jackson Women's Health Organization | LII / Legal Information Institute. Legal Information Institute. Retrieved July 3, 2022, from https://www.law.cornell.edu/supct/cert/19-1392 

De Pinto, J., Khanna, K., Backus, F., & Salvanto, A. (2022, June 26). CBS News poll: Americans react to overturning of Roe v. Wade — most disapprove, call it step backward. CBS News. Retrieved July 3, 2022, from https://www.cbsnews.com/news/americans-react-to-roe-v-wade-overturn-opinion-poll-2022-06-26/ 

Duignan, B., & Smentkowski, B. P. (2022, June 24). Dobbs v. Jackson Women's Health Organization | Definition, Abortion, Background, Arguments, Roe v. Wade, & Planned Parenthood v. Casey. Encyclopedia Britannica. Retrieved July 3, 2022, from https://www.britannica.com/topic/Dobbs-v-Jackson-Womens-Health-Organization 

Guttmacher Institute. (n.d.). Interactive Map: US Abortion Policies and Access After Roe. Guttmacher Institute. Retrieved July 2, 2022, from https://states.guttmacher.org/policies/oregon/abortion-policies 

Guttmacher Institute. (2022, June 6). 13 States Have Abortion Trigger Bans—Here's What Happens When Roe Is Overturned. Guttmacher Institute. Retrieved July 2, 2022, from https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned 

Guttmacher Institute. (2022, June 15). Long-Term Decline in US Abortions Reverses, Showing Rising Need for Abortion as Supreme Court Is Poised to Overturn Roe v. Wade. Guttmacher Institute. Retrieved July 2, 2022, from https://www.guttmacher.org/article/2022/06/long-term-decline-us-abortions-reverses-showing-rising-need-abortion-supreme-court 

Knight, V., Pradhan, R., & Rovner, J. (2022, June 28). Five things to know now that the Supreme Court has overturned Roe v. Wade. CBS News. Retrieved June 30, 2022, from https://www.cbsnews.com/news/roe-v-wade-overturned-abortion-questions/ 

McCann, A. (2022, June 29). How the Overturning of Roe v. Wade Might Affect Abortion Access in Illinois. The New York Times. Retrieved June 30, 2022, from https://www.nytimes.com/interactive/2022/06/29/us/illnois-abortion-roe-wade.html 

McClain, L. C., & Huberfeld, N. (2022, June 24). Roe overturned: What you need to know about the Supreme Court abortion decision. The Conversation. Retrieved June 30, 2022, from https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692 

N.Y. Times. (2022, June 30). Tracking the States Where Abortion Is Now Banned. The New York Times. Retrieved June 30, 2022, from https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html 

Roe v. Wade, 410 U.S. 113. (1973). Retrieved July 9, 2022, from http://landmarkcases.c-span.org/pdf/Roe_Blackmun_Opinion.pdf 

Suk, J. (2022, April 17). If Roe v. Wade Is Overturned, What's Next? The New Yorker. Retrieved July 3, 2022, from https://www.newyorker.com/magazine/2022/04/25/if-roe-v-wade-is-overturned-whats-next 

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