Roe v. Wade overturned: Now what?

Abortion Law

abortion law

By WVUA Digital Reporter Jas Orr

Early Friday morning, the U.S. Supreme Court voted 6-3 to overturn the controversial Roe v. Wade decision. The full majority opinion, written by Justice Samuel Alito, can be found here.

This ruling was on Dobbs v. Jackson Women’s Health Organization, where the only licensed abortion clinic in Mississippi (Jackson Women’s Health Organization) filed a lawsuit against the state for a newly signed law banning nearly every abortion after 15 weeks. The lawsuit climbed its way to the Supreme Court and was already promising to be a high-profile, controversial case. This was exacerbated by an early leaked document that detailed the Court’s plan to overturn Roe v. Wade, which immediately sparked protests. Early today, it was revealed that this was the final decision of the Court, thus overturning Roe v. Wade, which gave people the right to abortion, and Planned Parenthood v. Casey, which solidified this right. 

In the majority opinion, Alito claimed that during Roe v. Wade and subsequently Planned Parenthood v. Casey, the Court exercised a power it should not possess, stating that “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.” 

These rights were not solidified into federal law, though 16 states have guaranteed the right to abortion through various laws. On the other hand, 13 states have “trigger laws” that will go into effect in the coming month, following Roe v. Wade being overturned, including Mississippi and Tennessee. Many of these laws are near total bans, allowing exceptions only when the mother’s life is at stake. Furthermore, 26 states, including Alabama, are expected to implement similar bans now that Roe v. Wade has fallen, according to the Guttmacher Institute.

In the state of Alabama, a law was passed in 2019 banning all abortion or attempts to perform an abortion in the state except in cases of lethal fetal anomaly or to prevent a woman’s death. Violations of this law, called the Human Life Protection Act, are considered Class A felonies punishable by a sentence of up to 99 years in jail. However, this law was unconstitutional and unenforceable under Roe v. Wade. Now, it may become the law of the land, pending an ongoing lawsuit

Locally, the effects of this ruling are already taking hold. West Alabama Women’s Center, the only abortion clinic in west Alabama, has already halted all procedures.

Though these laws mark major changes for abortion access across the United States, the larger implications of the court’s decision reach far beyond the issue of abortion. Namely, using the same justification that the court used against Roe v. Wade, several landmark cases could be overturned. These include Lawrence v. Texas, a 2003 decision decriminalizing same-sex sodomy, Obergefell v. Hodges, a 2015 decision legalizing same-sex marriage, Griswold v. Connecticut, a 1965 decision that legalized contraceptive use, Loving v. Virginia, the 1967 decision legalizing interracial marriage, Skinner v. Oklahoma, a 1942 decision that protected against compulsory sterilization by the state, and Winston v. Lee, a 1985 decision that protected against a “virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin” by the government. 

All of these cases rely on the due process clause of the 14th amendment, which decrees that no state can deprive “any person of life, liberty, or property, without due process of law.” During Griswold v. Connecticut, this was interpreted to mean that the government could not take away any unenumerated, or specifically mentioned rights. And, more directly, the government could not take away a persons’ right to privacy. 

As mentioned by Alito in the majority opinion, this right to privacy was the primary justification for Lawrence v. Texas, Obergefell v. Hodges, Loving v. Virginia and, namely, Roe v. Wade. 

“We hold that Roe and Casey must be overruled,” Alito wrote in the majority opinion. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the due process clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.” 

This raises a larger question of what rights are “rooted in the nation’s history and tradition.” Certainly, interracial marriage was not deeply entrenched in the history of the U.S., which was deemed illegal by the Alabama constitution in 1900, and only became legal with Loving v. Virginia.  

Though, Alito made a point to differentiate the right to abortion, stating that “the Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. inapposite.” 

Despite this separation, many progressive activists can’t help but wonder what’s next.

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