Roe V. Wade Overturned: Abortion Rights Left To States To Decide

WASHINGTON — President Joe Biden on Friday criticized the conservative Supreme Court's decision earlier in the day to strike down the almost half-century-long federal protection of women’s reproductive rights, calling the decision “wrong, extreme and out of touch" and saying it puts personal freedoms on the ballot in the November midterm elections.

The court's 6-3 decision in Dobbs v. Jackson Women’s Health Organization was a thorough repudiation of the landmark 1973 Roe v. Wade decision and a subsequent case on fetal viability, Planned Parenthood v. Casey. It also sets the stage for a patchwork of state laws across the country and a seismic shift in abortion rights.

“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," Justice Samuel Alito Jr. wrote for the majority. "It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The court's three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — dissented in what was the most anticipated decision of the court's current term after the leaked opinion draft. They criticized what they called the majority's "cavalier approach to overturning this Court's precedents."

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“In overruling Roe and Casey, this Court betrays its guiding principles," they wrote. "With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”

Some state laws, Biden said Friday in remarks from the White House, are so extreme that "women and girls are forced to bear their rapist's child."

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Politicians should not be allowed to interfere with a decision that should be made between a woman and her doctor, Biden said, urging Congress to act and for voters to go to the polls to make known their displeasure over the end of Roe v. Wade. He also made clear he is working with the Justice Department to ensure women continue to have the right to travel to another state to obtain an abortion.

Alarm Over Thomas' Concurring Opinion

Friday was one of the few times in history the Supreme Court has invalidated an earlier decision declaring a constitutional right. And it was the only time the court took away a right with as much public support as abortion — a record high 47 percent of Americans said in a May Gallup poll they believe abortion is morally acceptable, up from a low of 36 percent in 2009.

The ruling is a harbinger of what could come from the conservative court, Biden said, singling out Justice Clarence Thomas' concurring opinion in which he opened the door to applying the reasoning in the Dobbs case to other landmark cases, including the 2015 decision legalizing same-sex marriage and protections on the right to contraception.

Thomas acknowledged the Dobbs decision affects only abortion rights, but he argued that if the Constitution's Due Process Clause doesn't guarantee the right to an abortion, it doesn't guarantee other substantive rights, either.

Americans "can have the final word," Biden said. "This is not over."

A Victory For Conservatives

The court's decision, which was expected after Alito’s majority opinion draft was leaked, is a victory for conservatives, who have been working through state legislatures for years to get a case before the Supreme Court.

“Millions of Americans have spent half a century praying, marching, and working toward today’s historic victories for the rule of law and for innocent life," Senate Minority Leader Mitch McConnell (R-KY) said after the court's decision came down. "I have been proud to stand with them throughout our long journey and I share their joy today.”

House Minority Leader Kevin McCarthy (R-CA) also applauded the decision.

“A lot of lives are going to be saved,” McCarthy told reporters. “But it also goes back to people in the states to have a say in the process.”

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The decision also makes a reshaped Supreme Court one of President Donald Trump's signature legacies. He appointed three of the justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the last of whom he named only weeks before his presidency ended to replace liberal stalwart Ruth Bader Ginsburg, who died in September 2020.

Although the ruling on the Dobbs case was 6-3, the decision to strike down Roe and Casey was 5-4, with Chief Justice John Roberts writing a concurring opinion that said overturning the landmark statute went too far.

"The Court's decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases," Roberts wrote in his concurring opinion released on Friday along with the majority opinion. "A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."

States With Trigger Laws Move Quickly

The implications of the court's decision are immediate.

Missouri Attorney General Eric Schmitt said he was acting immediately to enforce a state law banning abortion except in “cases of medical emergency.” His state is one of 13 with trigger provisions that take effect immediately.

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“With this attorney general opinion, my office has effectively ended abortion in Missouri, ” said Schmitt, a Republican who also is running for U.S. Senate.

Four more states are poised to ban abortion, according to the Guttmacher Institute, an abortion rights research and policy group. Nine have so-called fetal heartbeat laws that make the procedure illegal before many women know they are pregnant.

At least 26 states are certain or likely to make it nearly impossible for a woman to get a procedure that was legal for her mother, grandmother or even great-grandmother, according to the Guttmacher Institute.

With the decision, abortion would be illegal or a nearly impossible procedure to get in about half of U.S. states, including large swaths of the South, Midwest and Northern Plains.

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"Whatever the exact scope of the coming laws," Breyer, Sotomayor and Kagan wrote in their dissent, "one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens."

Protests roiled outside the Supreme Court, with hundreds of supporters chanting slogans including "legal abortion on demand" as more-jubilant demonstrators hoisted signs proclaiming "the future is anti-abortion" and "dismember Roe."

The division there is likely to play out in the midterms. Biden and other Democrats plan to use outrage over the court decision to rally voters. Although nationwide legislation ensuring access to abortion appears out of reach, more Democratic victories at the state level could limit Republican efforts to ban the practice.

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Democratic House Speaker Nancy Pelosi of California said the watershed ruling “is outrageous and heart-wrenching” and fulfills the Republican Party's "dark and extreme goal of ripping away women’s right to make their own reproductive health decisions.”

U.S. Sen. Dick Durbin (D-IL), who chairs the Senate Judiciary Committee, will convene the panel on July 12, a day after lawmakers return to Washington from the summer recess.

“The court’s decision to erase the right to access an abortion will not only lead to the denial of critical health care services, but also criminal consequences for women and health care providers in states eager to embrace draconian restrictions,” he said in a statement.

Abortion rights were long considered settled law; and even as conservative states pushed at-the-time unconstitutional fetal heartbeat laws and others restricting abortion access to bring the court to this moment, many legal scholars doubted a right that generations of women and men had counted on was in serious jeopardy.

Roberts’ vote was pivotal until the conservative majority swelled to seven justices. His relationship with Roe has been somewhat tangled. He championed its reversal as a young lawyer working for Ronald Reagan and George H.W. Bush’s administrations in the 1980s; but he said in his 2005 Senate confirmation hearing for the job he now holds that Roe — affirmed in 1992 — should be considered an established precedent.

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He has largely held to that, in 2019 siding with the court’s liberal wing in a 5-4 decision blocking a Louisiana law that would have required abortion providers to have admitting privileges at nearby hospitals. Roberts offered no reason for his vote, but it signaled at the time he was unwilling to disrupt a 2016 precedent that struck down a similar law in Texas.

With a firmly minted conservative majority when the court heard oral arguments on the Mississippi case, Roberts’ vote became less important.

Lawyers for the state of Mississippi had proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued at the time, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

Biden acknowledged Friday there's little executive action he can take to restore abortion rights. It's doubtful there are enough votes in the Senate for the Women’s Health Protection Act, which would codify abortion rights and has passed the House. It was introduced in the Senate but hasn’t been voted on.

That could give Republicans opposed to abortion added incentive to vote for anti-abortion candidates in the midterms. The decision could also embolden Republicans to push for hard-line national bans on abortion, rather than a patchwork of laws that would require women with the means to do so to travel to states where the procedure is legal.

“This is a whole new ballgame,” Kristan Hawkins, president of Students for Life Action, one of the country’s biggest anti-abortion groups, said in an interview in May with The Washington Post. “The 50 years of standing at the Supreme Court’s door waiting for something to happen is over.”

U.S. Sen. Joni Ernst (R-IA) is expected to introduce legislation banning abortion nationwide at six weeks' gestation, The Post reported. That’s the standard set in Iowa’s fetal heartbeat law, which a state court judge later declared unconstitutional.

In response, conservative Republicans took steps in the Iowa Legislature to amend the state’s constitution to say it does not protect abortion rights or require public funding of abortions. If lawmakers approve the language again in 2023 or 2024, voters will decide the issue in the 2024 general election.

The Associated Press contributed reporting.