By now everyone has heard about or read a headline saying that the United States Supreme Court overturned Roe v. Wade, the 49-year-old decision that created a constitutional “right” to abortion out of whole cloth. In Dobbs v. Jackson Women’s Health Organization, the high court on Friday not only threw out Roe, but also its 1992 progeny, Planned Parenthood v. Casey, which modified Roe while still reaffirming the underlying “right.”
At issue in Dobbs was the constitutionality of a 2018 Mississippi law prohibiting abortion (with certain limited exceptions) after 15 weeks gestation. Challenged in the federal courts, the law was struck down because of Roe and Casey. Casey in particular held that until the viability of the preborn child (currently considered to be around 24 weeks gestation), a state had essentially no defendable interest in prohibiting abortion.
In the Dobbs majority opinion, written by Justice Samuel Alito, six justices combined to uphold the constitutionality of the Mississippi 15-week law. There was a slight difference in the reasoning the court used to get there, with five justices – Alito, Thomas, Kavanaugh, Gorsuch and Barrett – agreeing that Roe “was egregiously wrong from the start,” expressly overturning Roe and Casey.
“We hold that Roe and Casey must be overruled,” Alito’s majority opinion stated. “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 — the Due Process Clause of the Fourteenth Amendment.” |