Almost half a century after the ruling of the Supreme Court of the United States that enshrined abortion as a constitutional right throughout the country, the high court has reversed the historic decision Roe v. Wade (1973) Y Casey v. Planned Parenthood (1992) with five votes in favor, three of them by judges appointed by Donald Trump.
“It is time to heed the Constitution and return the issue of abortion to the elected representatives of the people,” the ruling states. “[La sentencia] Roe was shockingly incorrect and contrary to the Constitution from the day it was decided,” he adds.
What is the argument of the Supreme
“We consider that [las sentencias] Roe and Casey must be overruled. The Constitution makes no reference to abortion and such right is not implicitly protected in any constitutional provision”, states the sentence, written by Judge Samuel Alito. The Roe and Casey rulings held, on the contrary, that abortion was implicit in the right to privacy. “This provision has been used to guarantee some rights that are not mentioned in the Constitution, but these must be ‘deeply rooted in the history and tradition of the nation and ‘implicit in the concept of ordered freedom,'” the judge said, citing another previous court ruling.
“The right to abortion does not fall into this category. Until the latter part of the 20th century, such a right was totally unknown to US law. In fact, when the 14th Amendment to the Constitution was passed, three-quarters of the states made abortion a crime at all stages of pregnancy,” he adds.
Some consider that this vision could jeopardize other rights that are not explicitly written in the Constitution and that are also based on the freedom of private life, such as the different rights of homosexual couples and the use of contraceptives, among others, since at the time of its approval they were not “rooted” in the history of the country. However, the sentence denies it: “This decision affects the constitutional right to abortion and nothing else. Nothing in this opinion should be understood as calling into question non-abortion precedents.”
“[La sentencia] Roe was clearly wrong from the start. His reasoning was exceptionally weak and the decision has had damaging consequences. Far from bringing about a national agreement on abortion, Roe and Casey have inflamed the debate and increased the division”, adds the sentence.
What did he say Roe v. Wade
There is no law in the US that legalizes abortion at the federal level: what existed were two fundamental decisions of the Supreme Court, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), who have so far vetoed prohibiting abortion throughout the country until the fetus is viable, that is, when it can live outside the uterus, which, according to the Supreme Court, is between 23 and 24 weeks.
Norma McCorvey, known by the pseudonym Jane Roe, sued her district attorney, Henry Wade, because she wanted an abortion but was not allowed by Texas law. The court agreed with him, but Texas appealed to the Supreme Court, which by a decision of seven to two, considered that abortion was a right. So, five justices appointed by Republican presidents and two appointed by Democrats supported the decision.
The constitutional right to privacy “is broad enough to include a woman’s decision whether or not to terminate her pregnancy,” the 1973 ruling said.
Now each state will be free to freely regulate abortion and Guttmacher Institutespecialized in this subject, calculates that up to 26 states, half of the country, could ban abortion very soon.
13 states already have approved laws that prohibit abortion and indicate that they will enter into force once repealed Roe v. Wade. Louisiana, for example, notes that its ban takes effect immediately upon reversal by the Supreme Court. Idaho, however, establishes a period of 30 days from the sentence until the entry into force.
Nine other states have laws passed before Roe v. Wade that prohibit abortion and that had been annulled by the Supreme Court ruling. Twelve states have passed laws prohibiting termination of pregnancy after the second month or earlier. There are even four states that prohibit the right to abortion in their constitution. Many of these laws have never entered into force thanks to the Supreme Court ruling, others have been appealed in court and experts predict a period of chaos until the states definitively implement their prohibitions.
Minutes after the ruling was made public, the Missouri attorney general boasted that the state had become the first to effectively ban abortion. Exactly the same has been done by the attorney general of Louisiana.
In the last two years, numerous states have tried to block access to abortion. In 2022 alone, Florida, Arizona and Kentucky have passed laws prohibiting the termination of pregnancy after 15 weeks. The governor of Idaho approved in March a law that has been temporarily blocked by the Supreme Court of the state in which abortion is vetoed after the sixth week except in the case of rape, incest, serious illness or risk to the life of the mother. The governor of Oklahoma, for his part, signed another law that directly prohibits abortion unless it is to save the life of the pregnant person and does not provide exceptions in the case of rape or incest. In Wyoming there is another similar law.
In 2021, Arkansas passed a currently blocked law that only allows abortion in cases where the pregnant person’s life is seriously in danger. Texas also approved an outright ban last year if the Supreme Court overturnedto Roe v. Wade. South Carolina passed another piece of legislation vetoing termination of pregnancy from the time the fetal heartbeat is detected. Other states have passed similar laws or regulations whose objective in practice is to block access to abortion without having to prohibit it explicitly.
Dissenting private votes
Three other judges have issued a separate opinion expressing their disagreement with the decision adopted by their other five colleagues and the consequences that this sentence will have on American women. “Yesterday, the Constitution guaranteed that a woman facing an unplanned pregnancy could (within reasonable limits) make her own decision about whether to have a child. By safeguarding the reproductive freedom of each woman, the Constitution also protected her ability to participate equally in social and economic life. But not anymore. From today this court defends that a state can always force a woman to give birth, prohibiting even the earliest abortions.
“With pain –for this Court, but more so, for the many millions of American women who today have lost a fundamental constitutional protection– we dissent”, the three judges –Breyer, Sotomayot and Kagan– point out in their dissenting opinion.
In addition, they doubt the argument that the five conservative judges defend in the sentence to try to affirm that their decision will not affect other rights. “The only justification for what most do today is that the right to abortion is not ‘deeply rooted in history,'” they say. “Most could write an equally lengthy opinion, for example, showing that until the middle of the twelfth century ‘there was no support in American law for a constitutional right to obtain contraception’”
“So one of two things must be true. Or most people don’t really believe their own reasoning. Or if it does, all the rights that have no history since the middle of the 19th century are not guaranteed. Either the basis of the majority opinion is hypocrisy or other constitutional rights are threatened. It’s one thing or another”.
Mississippi, the origin of the conflict
The Supreme Court ruling is the response to an appeal filed by the state of Mississippi after several courts rejected laws that, in practice, meant the almost total ban on abortion. The first law in question prohibits abortion after 15 weeks of gestation with the sole exception of serious deformities of the fetus or medical emergency. The other law raises a veto to the interruption of pregnancy from the moment the heartbeat is detected, which can occur between the first six and 12 weeks.
“I am committed to making Mississippi the safest place in America for an unborn child and this law will help us achieve that goal,” said Mississippi Governor Phil Bryant at the signing of the 15-week law. the toughest in the country. “They’ll probably sue us in half an hour, but I don’t care,” he joked.
And he was right. The last abortion clinic in Mississippi, also known as the Pink House, sued and, four years later, came into the hands of the Supreme Court. We already know the outcome: Mississippi has won.