• Mon. Sep 25th, 2023


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Key Passages From the Supreme Court’s Decision Overturning Roe

The Supreme Court decision that overturned Roe v. Wade and ruled that states should be allowed to ban abortions was written by Justice Samuel A. Alito Jr. and joined by five other justices.

Below are key passages from Justice Alito’s majority opinion in the case, Dobbs v. Jackson, with analysis from New York Times reporters. The full, annotated opinion can be read here.

Then, in 1973, this Court decided Roe v. Wade. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.

Justice Alito’s guiding principle is that a right to an abortion cannot be found in the Constitution. He adheres to a legal philosophy known as “original intent,” which involves scrutinizing the founding document’s language to derive direction on contemporary issues. —Jan Hoffman

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. 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.

Even if the arrival of new justices on the Supreme Court shifts its ideological balance, the court is not supposed to revisit and overturn every precedent with which a new majority disagrees. But as Justice Alito notes, the court nevertheless still does sometimes overturn precedents, and has developed a five-factor test. Each supports overturning the constitutional right to an abortion, he argues. —Charlie Savage

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Here is Justice Alito’s bottom line: The Constitution does not prevent state legislatures from banning abortion. —Charlie Savage

Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications.

Many legal scholars have reasoned that Roe should have been argued as an equal-protection right for women, along the lines that Justice Ruth Bader Ginsberg would present as a lawyer before the Supreme Court shortly after Roe was decided. Justice Alito says that because the right to abortion was not based in such reasoning, judges who evaluate laws regulating it need not apply a level of scrutiny that extends to laws based on gender. —Jan Hoffman

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.

Having listed numerous laws before and during the 19th century that banned abortions, he concludes that no one back then thought there was a right to abortion. —Charlie Savage

Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. Jd., at 488 (internal quotation marks omitted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U.S. 587 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule.

Arguing that respect for precedent does not preclude the Supreme Court from ever overturning one of its past rulings, Justice Alito points to a long line of rulings that did so — starting with the most venerated landmark civil rights decision in American history, the 1954 case striking down racial segregation in schools. —Charlie Savage

But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.

The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years.

For decades, the viability point was considered to be about 24 weeks into a pregnancy; now it can often be at 23 weeks’ gestation and occasionally as early as 22 weeks, with rare cases of babies surviving if delivered at 21 weeks’ gestation.

But the characteristics of a fetus still prevent viability much earlier than that because important phases of development of the brain and other organs don’t occur until well beyond the first trimester. There is no possibility of fetal viability at 15 weeks, the point at which the Mississippi law would outlaw most abortions in the state. Nor did Mississippi officials claim that a baby could survive at that stage. —Pam Belluck

And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

The claim by Justice Alito that this ruling does not jeopardize other modern-era rights that derived from the same legal reasoning — like sex between consenting adults of the same sex and the right of same-sex couples to marry — has been widely criticized as unpersuasive since the time it appeared in the leaked draft. After all, matters like rights for same-sex couples have no deep historical basis and, in some people’s minds, also raise critical moral questions.