The U.S. Supreme Court has cast aside legal precedents that have protected abortion access for nearly five decades, giving individual states free rein to determine reproductive rights. The landmark decision won praise from some for protecting the unborn, but was attacked by others as an act of judicial misogyny that reimposes archaic mores on the world’s leading economic power.
Roe v. Wade, the 1973 decision that enshrined abortion rights across the United States, “was egregiously wrong from the start,” Justice Samuel Alito wrote in a court opinion that based its argument upon a strict reading of the U.S. Constitution and a survey of centuries of English common law dating back to the 1200s.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” the court held in the decision, which had previously leaked to news media in draft form.
As a result, previous decisions that secured abortion rights “must be overruled,” the court said.
The court’s ruling, which upheld a Mississippi law banning most abortions at 15 weeks, at a stroke upended the provision of health care across much of the country. Researchers say 26 states are certain or likely to ban abortion. The court’s decision drew condemnation from the White House, legal scholars and abortion providers. It is a “national tragedy and global embarrassment,” said Bhavik Kumar, medical director of Planned Parenthood Gulf Coast.
“It just stuns me,” President Joe Biden said during a news conference. The court is “literally taking America back 150 years.”
In a sharply worded dissent, three liberal justices warned the decision means “that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” The dissent warned that the door is now open for the federal government to ban the procedure nationwide.
If that happens, “the challenge for a woman will be to finance a trip not to ‘New York [or] California’ but to Toronto,” the justices wrote.
The decision may also undercut the legal underpinnings that protect contraception and same-sex marriage. Justice Clarence Thomas, in a concurring opinion, said those precedents should be reconsidered. The court’s majority opinion contradicted Justice Thomas’s assessment, saying it is an “unfounded fear that our decision will imperil those other rights,” and that abortion is unique.
But “no one should be confident that this majority is done with its work,” the three liberal justices wrote in dissent.
The Biden administration pledged to do everything in its power to protect women. “This fall, Roe is on the ballot. Personal freedoms are on the ballot,” Mr. Biden said.
No executive order, however, can overturn the court decision, which Attorney-General Merrick Garland said in a statement “will be greatly disproportionate in its effect – with the greatest burdens felt by people of colour and those of limited financial means.”
Thirteen states have passed “trigger laws” against abortion that can activate with the release of the decision. In Texas, Planned Parenthood halted abortion services on Friday.
Elsewhere, abortion clinics continued to operate, awaiting their respective states’ final decisions to enact trigger laws. “We have not been told that it is illegal in Utah. Yet,” Karrie Galloway, the president of Planned Parenthood Association of Utah, said Friday morning. By evening, Utah had certified its trigger law.
Ms. Galloway lamented the “dark” prospect of finding herself among the many American women who now “can’t make decisions about their own bodies.”
For others in Utah, the decision came as an answer to prayer.
“It’s an exciting and happy day for the unborn babies of the United States of America,” said Gayle Ruzicka, the president of Utah Eagle Forum and a close friend of the late anti-abortion activist Phyllis Schlafly.
Considered the matriarch of conservative politics in Utah, Ms. Ruzicka has spent more than three decades fighting abortion in the state. “I wanted to see this happen before I died,” she said. With its decision, she added, the Supreme Court has “blessed our country.”
“It defines in so many ways who we are.”
The decision “affirms the value that America places on human life,” said Karianne Lisonbee, the Utah House of Representatives sponsor for the state’s trigger law. Republican legislators in Utah have already met to discuss what comes next. “We’ve determined that we want to try to pave the way to make adoptions easier for couples that want to adopt,” Ms. Lisonbee said.
The court’s dissenting opinion cited a study that found that, among women denied abortions, only 9 per cent gave their child up for adoption.
Legal scholar Caroline Frederickson, a visiting professor at Georgetown Law, faulted conservative justices for cloaking personal theological preference in legal language. “I don’t think there’s really any question. This is a theocratic court,” she said. The view that abortion necessarily ends a life, she said, is “a religious point of view. Not a medical point of view.”
The court opinion points to a tradition of criminalizing abortion that dates to the 13th century, citing the writings of English jurist Henry de Bracton. De Bracton’s other observations include: “Women differ from men in many respects, for their position is inferior to that of men.”
The consequences of the abortion decision will be far-reaching. Companies will be forced to take a stand, in part as they decide on health benefits for women, and on how to allocate those benefits to employees in states that ban abortion, said Jennifer Reynolds, chief executive of Women Corporate Directors, a membership organization. Recruitment in some states may suffer, she added.
“I wish I were watching some dystopian movie, not the news today. But it’s actually reality,” she said.
The decision may further inflame rising U.S. public distrust of its top judicial body. Only one in four Americans now express confidence in the Supreme Court, a recent Gallup survey found – a record low.
“It’s a major moment in which people are asking foundational questions,” said Olatunde Johnson, a Columbia Law School scholar who served on Mr. Biden’s Presidential Commission on the Supreme Court, alongside Prof. Frederickson.
What should be the limits of Supreme Court power? Should there be term limits? What responsibility does Congress have? Is it time to amend the Constitution?
Whether any of those issues can be resolved in a country riven by political divisions, “I don’t know,” Prof. Johnson said. “But these were not conversations that I heard really seriously a decade ago.”
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