On Monday, May 2, at 8:32 p.m., Politico released a bombshell. The news agency claimed to have obtained a leaked draft opinion from the Supreme Court, showing that at least five of the nine justices had voted to overturn Roe v. Wade—a 1973 landmark case affirming the right to abortion—in Dobbs v. Jackson Women’s Health Organization (2022). While this is a leak and the Court’s decision could change prior to the ruling’s official release, Roe v. Wade is likely to be overturned.
Social media whipped into a frenzy, reacting to the leaked decision and attempting to gauge the leak’s legitimacy. Scrolling through the majority opinion, however, I had no doubts that the draft was real, and just a day later, Chief Justice John Roberts confirmed the leak’s legitimacy.
While some were in shock, the decision came as no surprise to those who closely follow the Supreme Court. The Court is currently composed of six originalists (those who consider the original intent and/or understanding of the Constitution by the Founding Fathers) versus three living constitutionalists (those who consider the Constitution through the current cultural and social context). Chief Justice Roberts has been a moderate “swing vote” during his time on the bench, siding with the Court’s living constitutionalist wing more often than his originalist and textualist counterparts. Following the appointment of Justice Amy Coney Barrett, he has increasingly found himself in the minority.
Few doubted that, after Barrett’s appointment, Roe would be weakened, but the Court’s leaked draft went further, overruling both Roe and Planned Parenthood v. Casey (1992), another important precedent in relation to abortion, placing the future of reproductive rights in jeopardy.
In light of recent events, this article seeks to provide context to Roe and the controversial topic of abortion. It also seeks to inform what post-Roe America could look like. While I provide my own analysis and opinions, readers are encouraged to use this article to inspire further research and reach their own conclusion. The history teachers at Haverford are an amazing place to start; a conversation with Dr. Gurtler, Mr. Lengel, or Ms. Turlish would help in a greater understanding of abortion throughout American history.
The Warren Court forged the path to Roe
To truly understand Roe, one must begin two decades prior with the Warren Court. President Eisenhower appointed Earl Warren—then the Republican governor of California—as Chief Justice of the Supreme Court in 1953, wanting a strong leader who would be moderate in his judicial approach. Warren certainly was the former, yet anything but the latter; his broad, living interpretation of the Constitution sought to address inequality and injustice in mid-20th century America.
The Warren Court’s renown would come from its usage of the 14th Amendment’s Due Process Clause to expand the rights of American citizens. The Due Process Clause prevents states from depriving American citizens of the fundamental rights of “life, liberty, and property.” Substantive due process—the principle that allows the courts to protect unenumerated rights from government interference—would be the basis for some of the Warren Court’s rulings: Brown v. Board of Education (1954)(segregated schools are unconstitutional), Griswold v. Connecticut (1965) (banning contraceptives is unconstitutional), and Loving v. Virginia (1967) (right to interracial marriage). Even after his retirement as Chief Justice in 1969, Warren’s living constitutional interpretation and usage of the Due Process Clause continued to impact the Supreme Court during the 70s.
Roe v. Wade: Background and Ruling
Prior to Roe, almost every single state banned abortion, with few exceptions. Women still obtained illegal abortions with the risk of death when performed improperly. With the Civil Rights and anti-war protests of the 60s, abortion and reproductive rights became a centerpiece of second-wave feminism. New York, Hawaii, Washington D.C., Alaska, and Washington state would eventually legalize abortion in the early stages of pregnancy. Some women would travel to these states to seek safe and legal abortion; however, the vast majority simply could not afford the expenses.
Roe v. Wade (like many other rulings of the prior Warren Court) applied a living interpretation of the 14th Amendment’s Due Process clause, considering the social context of 1970s America in its final ruling.
Roe v. Wade (like many other rulings of the prior Warren Court) applied a living interpretation of the 14th Amendment’s Due Process clause, considering the social context of 1970s America in its final ruling. In a 7-2 decision, the Supreme Court nullified a Texas law that banned abortion unless it was performed to save the mother’s life; Justice Henry Blackmun, writing for the majority, stated that the Constitution guaranteed the “right of privacy … founded in the Fourteenth Amendment’s concept of personal liberty” which protected the right to an abortion. Acknowledging the need to balance personal privacy against a state’s interests in protecting potential life, the Court established the trimester framework: in the first trimester of pregnancy, the state could not regulate or prohibit abortion. In the second trimester, the state could begin regulating abortion, and in the third trimester, the state could begin prohibiting abortion unless the mother’s life was at risk.
Roe’s Backlash & Inevitable Decline
Taking up the case, all nine Justices on the Burger Court knew they were treading on a controversial topic; the majority opinion even acknowledged the complicated factors that formed differing opinions of abortion. In recognizing abortion as a constitutional right, however, Roe inflamed the anti-abortion movement; opposition to Roe usually stems from perceived judicial overreach, religious conflicts, or perception of when life begins.
In the decades after the ruling, state legislatures passed restrictions on abortions that either circumvented Roe or disregarded it. A changing, more originalist Supreme Court rejected most abortion-related hearings, while the ones that were heard resulted in partial restrictions on Roe’s trimester framework.
In 1992, Roe faced its greatest challenge when Planned Parenthood of Southeastern Pennsylvania sued Bob Casey Sr.—then governer of Pennsylvania—after he signed a series of abortion restrictions. Ultimately, the Supreme Court partially upheld and partially overturned Roe in a 5-4 ruling in Planned Parenthood v. Casey, upholding most of Pennsylvania’s abortion restrictions while simultaneously striking down the trimester framework; the Court replaced it with a “fetal viability” standard, preventing regulation of abortion prior to 24 weeks of pregnancy.
Challenges to abortion have only become more common. States have enacted 108 abortion restrictions in 2021, more than any other year since the Roe v. Wade decision. Abortion has turned into a political issue, with the majority of Democratic politicians supporting it and the majority of Republican politicians against the procedure.
Finally, we come to Dobbs v. Jackson’s Women’s Health Organization. In 2018, Mississippi banned abortion after fifteen weeks of pregnancy with only medical and fetal abnormality exceptions. The state’s only abortion clinic sued, and the case made its way to the Supreme Court.
I will not provide a full analysis of Justice Samuel Alito’s leaked majority opinion, as that would be too time-consuming. Rather, I will offer a very brief summary and a brief analysis. For those who wish to read the full ruling, you will have no trouble finding it online.
“We hold that Roe and Casey must be overruled. The Constitution makes no references to abortion, and no such right is implicitly protected by any constitutional provision, including the Due Process Clause.”
Alito repudiates Roe using originalist and historical analysis; his argument lies in the belief that Roe and Casey were judicial overreach. The issue of abortion had no basis, as the Constitution did not use the term “abortion” and the necessary standard for protection under the Due Process Clause, as laid out in Washington v Glucksberg (1997), was not met.
This ruling comes at a time when many states are heavily restricting abortion access. In fact, thirteen states (all controlled by Republicans) are set to ban all forms of abortion immediately upon Roe’s official overturning, while five others have pre-Roe anti-abortion legislation that could be revived. During a time when many other countries are expanding abortion access, America will be limiting it, turning back the clock on reproductive rights for five decades.
Roe is set to be officially overturned come June, and, by the end of the summer, Republican-controlled states will likely enact complete abortion bans, while Democratic-controlled states will enshrine the right to abortion into their state laws and expand access. A fragmented nation will only become more divided, and abortion is likely to be a central issue in the 2022 midterms. Abortions, legal and illegal, will continue, and those most impacted will be poor and working class women, who have neither the time nor money to travel out of state for legal abortions.
Moreover, Alito’s wording is harsh, and his strict interpretation of the 14th Amendment and insistence on a strict historical basis for unenumerated rights opens the door for many other challenges to Civil Rights related issues. While Alito explicitly differentiated abortion from other potentially related issues, one could very much apply his logic to Griswold v. Connecticut, as Roe v. Wade employed similar reasoning. Obergefell v. Hodges (2015), a recent case that recognized the right to same-sex marriage, could logically be challenged, as it relies on the same living interpretation of the Due Process Clause that lead to Roe. In fact, three of the Court’s current originalists — Roberts, Thomas, and Alito himself — dissented on Obergefell, arguing that each state’s electorate should be able to decide on the issue.
Why you (as men) should care about abortion rights
Moreover, as American citizens, we should care about the rights of all, no matter their direct impact on us.
As young, Haverford men, we may not fully understand the complex perspectives of abortion. Still, we are taught to be compassionate, critical thinkers. The benefits of legal and safe abortion do not apply to just women; the ability to terminate an unwanted or accidental pregnancy benefits both partners in a relationship, alleviating any potential costs that come with an unwanted child. Moreover, as American citizens, we should care about the rights of all, no matter their direct impact on us.