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How the Supreme Court went from cementing abortion rights to drafting their demise

The U.S. Supreme Court is seen through high fencing that was installed overnight following protests outside of the court following the leaked opinion suggesting the possibility of overturning the Roe v. Wade abortion rights decision, in Washington, May 5, 2022.
Evelyn Hockstein | Reuters

Federal protections for abortion rights have withstood legal challenges for nearly half a century. But a Supreme Court draft opinion, revealed this week in an extraordinary leak, shows the high court poised to strike down that longstanding precedent.

The draft marks a stunning shift from a court that grew far more conservative during the Trump administration, even as Americans have broadly grown more liberal in the years since the pivotal abortion rulings in 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey.

Chief Justice John Roberts noted that the first draft, penned by conservative Justice Samuel Alito and reportedly circulated in February, does not represent a final decision in the case. But the early leak of an opinion that would upend nearly 50 years of precedent nevertheless represents the culmination of decades-long efforts by activists and lawmakers to challenge abortion at all levels, from the individual to the constitutional.

Here’s a look at what led to this moment:

Before Roe

In his 98-page draft opinion, Alito looked to the history of abortion policies in the U.S. to bolster his conclusion that Roe and Casey “must be overruled.”

Abortion is not a constitutionally protected right, Alito wrote, pointing out that the Constitution itself makes no reference to abortion. While he acknowledged that the court has interpreted the 14th Amendment to guarantee some rights that are not explicitly spelled out, Alito cited precedent stating that those rights must be deeply rooted in U.S. traditions and “implicit in the concept of ordered liberty.”

“The right to abortion does not fall within this category,” Alito’s draft said. “Up until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

The justice wrote that abortion was outlawed in three-fourths of the states at the time the 14th Amendment was adopted in the 1860s, and that 30 states had banned the procedure at all stages of pregnancy at the time Roe was argued before the court.

But the American Historical Association, which boasts of being the world’s largest organization of its kind, argued in a 2021 court brief that “American history and tradition under the common law undergirds Roe v. Wade’s holding that women have a constitutional right” to choose to have an abortion.

The group said that early Americans followed English common law, which did not regulate abortion prior to the detection of fetal movement — known at the time as “quickening.” That was the point at which the fetus was legally acknowledged to exist separately from a pregnant woman, the group said, adding that that common-law reasoning on abortion persisted in a majority of states up to the Civil War.

Abortion laws grew harsher in many states in the mid-1800s, aided by physicians in the American Medical Association. They were driven in part by fears about the reproduction rates of Catholic immigrants and women avoiding motherhood, according to the group.

The American Society for Legal History in a separate brief told the high court that abortions continued after those laws were passed, and accelerated during the Great Depression. That led some hospitals to craft reasons for abortions to be allowed, which “destabilized an already contentious status quo,” the organization said.

Medical advances in the mid-20th century made pregnancy and delivery much safer for women, diminishing the prevalence of abortion as a life-saving procedure. That, in turn, increased the risk of prosecution for abortion-performing physicians. It prompted many doctors in the 1960s to call for relaxing abortion regulations, the group said.

By the early 1970s, “both pro-life and pro-choice groups began advancing arguments rooted in the Constitution,” according to the brief.

Roe v. Wade

In March 1970, an unmarried and pregnant woman in Texas, identified at the time by the pseudonym Jane Roe, brought a federal case against the district attorney for Dallas County. She alleged the state’s abortion law was unconstitutional. The law violated her right of personal privacy under the Constitution, alleged Roe, now known to be Norma McCorvey.

The federal district court that heard the case struck down the Texas abortion law, writing that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.”

In January 1973, the Supreme Court in a 7-2 ruling held that the right to privacy, conveyed by the Due Process Clause of the 14th Amendment, allowed a person to choose to have an abortion until the point of fetal viability. That line, which described the point at which a fetus is able to live outside the womb, was considered to be around 24 weeks after conception.

The court ruled that the government “has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life,” and said that the balance of those interests shifts during each trimester of pregnancy.

Between Roe and Casey

The court examined numerous abortion-related disputes in the years after its ruling in Roe.

In a 1976 ruling in Planned Parenthood v. Danforth, the court struck down parts of a Missouri abortion law requiring a woman seeking an abortion to provide the written consent of her spouse, or her parent if she is under 18 and unmarried.

Four years later, the justices in Harris v. McRae upheld the Hyde Amendment, which limited the use of federal Medicaid dollars to fund abortions.

In Webster v. Reproductive Health Services, the court ruled that a 1986 Missouri law did not violate the Constitution by banning the use of public resources to perform abortions and requiring that physicians perform fetal viability tests if they believe an abortion-seeking woman is at least 20 weeks pregnant.

In 1990, the court in Hodgson v. Minnesota ruled that a state law provision denying abortion access to women under 18 until at least 48 hours after both of her parents were notified was unconstitutional.

The court ruled in Rust v. Sullivan in 1991 that the federal government is allowed to specify that Title X family-planning grant funds cannot be used for abortion-related services.

Planned Parenthood v. Casey

The court’s 1992 opinion in Casey reexamined the fundamental tenets of the precedent established by Roe.

The case itself centered on a number of restrictive provisions within a Pennsylvania abortion law. Among them were requirements that doctors explain potential negative consequences to women seeking abortions — known as informed consent — and that those women notify their husbands before getting the procedure, with some exceptions.

A federal district court blocked the enforcement of those provisions, but a U.S. court of appeals upheld most of them. It struck down the spousal notification requirement.

The case came before a more conservative slate of justices than the group that decided Roe. But in a fractured 5-4 ruling, the court reaffirmed the core of Roe, enshrining the right to choose to have an abortion before fetal viability.

However, the justices threw out Roe’s trimester timeline and established a new standard: that any government regulations on abortion before the point of fetal viability must not impose an “undue burden” on a woman’s right to choose.

Dobbs v. Jackson Women’s Health Organization

The court has ruled on abortion cases since Casey, including a 2007 ruling upholding a federal ban on late-term abortions and, more recently, a ruling allowing a challenge of a restrictive Texas abortion law to proceed in federal court.

But even before Alito’s draft opinion leaked, Dobbs v. Jackson Women’s Health Organization was seen as the most significant challenge to abortion rights in decades.

The case, which centers on a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy, directly asked the courts to strike down Roe and Casey.

The case was argued before a court that bears a 6-3 conservative majority, following the appointment of three justices nominated by former President Donald Trump.

In oral arguments in December, the court’s conservatives seemed ready to gut Roe and Casey. The liberal justices sounded alarms that reversing decades of abortion rights would destroy the public perception of the court.

Alito’s draft opinion argued that the court’s “egregiously wrong” decisions on abortion have already had “damaging consequences.”

“And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito wrote.

The American Society for Legal History, in its own “friend of the court” brief filed in Dobbs, disagreed.

“While conflict surrounding abortion rights certainly has escalated since Roe was decided, the bitterness and apparent intractability of the discussion stems from a multitude of other factors, including political party polarization, negative partisanship, and the transformation of the politics of Supreme Court nominations,” the organization said.

Recent polling suggests most Americans support abortion rights in most cases. A larger percentage of adults oppose most abortions in states that are poised to quickly outlaw the procedure if Roe is overturned, according to The New York Times.

Thirteen states have passed so-called trigger laws that would do just that. Up to 26 states are expected to impose new limits on abortion if Roe and Casey are indeed struck down, according to a leading reproductive rights advocacy group.

A final opinion in Dobbs is expected to come out close to the end of the court’s term in late June or early July.

If Roe v. Wade Falls: Travel Distance for People Seeking Abortion
Guttmacher Insitute

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