Supreme Court overturns Roe v. Wade, returns abortion question to states

Roe is no more.

On Friday morning, a divided U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision guaranteeing the right to an abortion, clearing the way for dozens of states, including Michigan, to either renew laws already on the books or propose new ones that criminalize or permit the procedure.

In reversing both Roe and the 1993 Casey decision, which reaffirmed a right to abortion but gave the states more leeway in setting restrictions, a conservative majority of the Supreme Court said those previous decisions were wrong and that it fell to legislators in the states to determine whether and when to allow abortions other than in cases where a pregnant person's life is in danger.

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The court voted 6-3 to uphold a Mississippi law that effectively prohibits abortions after 15 weeks, earlier than the 23 or 24 weeks at which a fetus has been considered viable or able to survive outside the womb. Abortion bans prior to viability had been ruled unconstitutional under Casey until now.

Michigan abortion rights

Many states may now move to restrict abortion even further. In Michigan, the question is whether a 1931 law prohibiting practically all abortions except in cases where a pregnant person's life is in danger goes into effect. At least one judge has granted a temporary injunction to stop that from happening and Gov. Gretchen Whitmer has asked the state Supreme Court to declare that law out of step with the state constitution.

“Today is a sad day for America as an unelected group of conservative judges act squarely against the will of the people and medical expertise," Whitmer said. "However we personally feel about abortion, health — not politics — should drive important medical decisions."

"For now, a Michigan court has put a temporary hold on the law, but that decision is not final," she added. 

President Joe Biden, speaking Friday afternoon from the White House, criticized the decision and the court, saying it had never before taken away a right it had previously guaranteed to Americans. He urged voters to elect abortion rights supporters to Congress this fall so it could restore the right.

"This is not over," he said.

U.S. Attorney General Merrick Garland also criticized the decision, calling it "a devastating blow to reproductive freedom." He added, however, that the decision "does not eliminate the ability of states to keep abortion legal within their borders" and that states with restrictive abortion laws can't keep pregnant people from traveling elsewhere for the procedure.

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Conservatives, meanwhile, rejoiced, having fought to overturn the ruling since its inception. Former President Donald Trump, who appointed three conservative justices during his one term in office, shifting the balance on the court, praised the outcome.

"Today’s decision, which is the biggest WIN for LIFE in a generation, along with other decisions that have been announced recently, were only made possible because I delivered everything as promised," Trump said in an email.

"Life wins!" said Republican National Committee Chairwoman Ronna McDaniel. "Millions of Americans are celebrating today’s ruling and a pro-life movement that has worked tirelessly for decades. For a half century unelected judges have dictated America’s abortion laws. This historic ruling rightfully returns power to the American people to enact laws that protect unborn children and support mothers everywhere."

What the Supreme Court said

In the decision Friday, five members of the nine-member court agreed that the U.S. Constitution granted no right to abortion and there was no historical reason to assume the founders wanted to do so.

"Abortion presents a profound moral question," Justice Samuel Alito wrote for the majority. "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."

Alito continued, saying, "Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like."

"What sharply distinguishes the abortion right from the rights recognized in the cases on

which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed 'potential life' and what the law challenged in this case calls an 'unborn human being.' ”

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Voting in favor of overturning Roe and upholding the Mississippi law besides Alito were Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the last three of whom were appointed by Trump. Chief Justice John Roberts concurred in the decision insofar as he would allow for "pre-viability" abortion restrictions by the states and uphold Mississippi's law. 

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented with the majority. 

Majority felt Roe was unworkable, compared it to school segregation

Roberts, in his concurring opinion, said he agreed that the viability test put in place by Roe and Casey — which said states could only regulate abortions once a fetus could theoretically live outside the womb — was unworkable and should go. But he said he wouldn't go so far as to throw out Roe and its finding that a pregnant person had a right to an abortion in its entirety, arguing that a person should have a "reasonable opportunity to choose" to have the procedure and no more.

Roberts also recognized that the decision to overrule a half-century of precedent was "a serious jolt to the legal system" and called for a "markedly less unsettling decision" that left Roe at least partially intact.

Alito and the other four refused, saying Roberts still hadn't shown how giving a pregnant person a reasonable opportunity to have an abortion "is 'deeply rooted in this nation’s history and tradition' and 'implicit in the concept of ordered liberty.' "

Rejecting the idea that Roe should stand because it had been in force for nearly a half-century, Alito said it was so badly reasoned it must go and compared the court's overturning of it to the court's decision in Brown vs. Board of Education to reverse an earlier decision upholding segregation in schools.

Alito also made clear that the majority wasn't extending its decision to other matters, such as the right of same-sex couples to marry. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," he said.

Thomas, in a concurring opinion, agreed that the decision didn't go beyond abortion. But he wrote that in the future the court should reexamine its thinking behind protecting other rights not enumerated in the Constitution. He specifically mentioned cases that prohibit states from enforcing same-sex marriage bans, disallow married couples to purchase and use contraceptives and outlaw sexual intercourse between two men.

In another concurring opinion, Kavanaugh said simply the decision was about abortion, no more, "The issue before this court ... is not the policy or morality of abortion. The issue before this court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion."

Dissent says women's autonomy threatened by ruling

In a sharply worded dissent, Breyer, writing for himself and the two other liberal members of the court, blasted the majority saying the earlier decisions understood that "The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions."

"Today, the court discards that (earlier) balance," he wrote. "It says 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."

"Some states have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life."

What's next?

A large crowd representing both sides of the question had gathered outside the court, where security was high and security fencing had been installed.

Now, the question turns to what states will do and what protests are likely to occur, with the nation already divided along partisan lines and a fractious midterm election on the horizon this fall. 

In expectation of a decision overturning Roe, which grew exponentially after a draft opinion by Alito was leaked in May, conservative states had been preparing to renew or enact stricter abortion laws, even as protesters took to the streets in cities across the nation demanding that their rights be protected. Millions of people in the U.S. have never lived under a regime where abortions are effectively banned and abortion rights activists have warned that such a change could lead to a circumstance where pregnant people are unfairly penalized, forced to have children even in cases of rape or incest.

They also argue that people who get pregnant will put themselves at risk by having unsafe abortions and see their economic, career and family choices dictated for them in part by the government, a situation others don't have to face.

Abortion opponents argue getting rid of Roe will save millions of potential lives by banning the procedure, a change they see as a moral imperative. With the court's decision, protests are certain to grow and the issue will explode again into American political landscape ahead of the November midterm elections as another stark dividing line between the Democratic and Republican parties.

Contact Todd Spangler: attspangler@freepress.com. Follow him on Twitter@tsspangler. Read more onMichigan politics and sign up for ourelections newsletter.