Court Overturns Roe v. Wade

Steven D. Schwinn, University of Illinois School of Law

As expected, the Supreme Court today overturned Roe v. Wade and ruled that women do not have a fundamental right to abortion.

The extraordinary ruling rolls back nearly 50 years of a fundamental right, and quite plainly lays the groundwork for overturning other fundamental rights.

The ruling allows and invites States to regulate abortion any way they wish, including criminalizing the procedure from the point of conception, with no life or health exception for the woman, and no exceptions for rape or incest. (The opinion doesn't compel this; it just allows and invites it.) Expect to see myriad regulations in about half the States (many of which have "trigger" laws that will regulate abortion as soon as the Court overturns Roe, that is, today), and a number of other States moving explicitly to protect abortion (some have already done so in one way or another).

Justice Alito wrote for the Court, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. He wrote that Roe was wrong when it was decided, and should be overturned.

Justice Thomas concurred, arguing that there's no such thing as substantive due process, and that the Court should reconsider all its substantive-due-process cases, including Griswold (right to contraception), Lawrence (right of two consenting adults to engage in private sexual conduct), and Obergefell (right to marry, including for same-sex couples).

Justice Kavanaugh concurred, arguing that the ruling only says that the Constitution is silent on abortion, and that the ruling kicks the issue to the States.

Chief Justice Roberts concurred in the result, arguing that while the viability line "never made any sense," the Court should nevertheless affirm the right to abortion to "extend far enough to ensure a reasonable opportunity to choose," but no further.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan.