Overturning Roe: An Explainer

Thanks to Neema Amini and Anne-Marie Fortenberry for their invaluable feedback. 

Late on Monday, May 2, Politico reported a leaked transcript of a Supreme Court ruling that overturns the fifty-year-old constitutional right to an abortion.

The ruling is just a draft, right now, of the majority opinion in Dobbs v. Jackson Women’s Health Organization—a case centering on a Mississippi abortion restriction that violates current law.

Abortion rights come from the Constitution. Rather than a law passed in Congress, abortion rights today are laid out in a series of Supreme Court decisions starting with Roe v. Wade in 1973. In a nutshell, the cases determined that a person’s right to an abortion is grounded in the right to privacy—the right to make healthcare decisions without undue governmental intervention—a right that the Court describes as deeply rooted in America’s history and tradition.

Roe, a case overturning a then-Texas law that restricted abortions, was the first to articulate this right, the right to have an abortion through the right to privacy. In Roe, the Court broke a pregnancy down into trimesters and, through this lens, weighed the right to privacy against the government’s interest in protecting life. It held that fetuses in the first two trimesters are not viable—could not survive outside the womb (a rough approximation of medical knowledge at the time)—so the government’s interest in protecting life was not as strong as a person’s right to privacy (and to have an abortion). But, the Court held, because fetuses could survive outside the womb in the third trimester (again, a rough approximation), the government’s interest in protecting life was sufficiently strong such that states could decide for themselves whether and how to restrict abortions.

This was the law for nearly two decades when, in 1992, the Court issued its opinion in Planned Parenthood v. Casey.[1] The Casey Court agreed with Roe in spirit—that there is a right to have an abortion that is grounded in privacy—but it rejected the trimester framework. Instead, Casey articulated the undue-burden test, based on the viability of the fetus: Restrictions are unconstitutional if they “plac[e] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Casey’s undue-burden test remains the law today—all states have to make abortion restrictions under Casey, and they vary widely in that framework. (Several states have recently passed laws that are illegal under Casey, but I’ll discuss that later.) Eight states share the least restrictive end, where abortion is allowed at all stages of pregnancy: Alaska, Colorado, Delaware, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. And Texas is the most restrictive state: it cuts off abortion after six weeks from the pregnant person’s last period (which is illegal under Casey).

Conservative states have, in recent years, begun a new front of resistance to Roe by passing laws they knew were illegal, designed to go to the Supreme Court for a chance to overturn Roe and Casey.

In 2019, Alabama was the first to all but place a blanket ban on abortions. Since, nine states have followed suit with illegal abortion restrictions: Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, Tennessee, and Texas. Of these, none of the illegal laws are in effect save Texas’s (though its law is under review in federal court).

Mississippi’s law, at issue in the leaked opinion, makes abortion illegal after fifteen weeks—roughly two months before a legal restriction. Jackson Women’s Health, Mississippi’s sole abortion provider, sued over the law and won in both the federal district court and Court of Appeals for the Fifth Circuit (the district court held, and the appellate court affirmed, that the restriction is illegal under existing law). Justice Alito appears to have the votes to overturn the lower courts and allow Mississippi’s law to take effect.

Texas’s law takes a novel approach. It’s designed not to challenge Roe directly in court, but to evade court review at all. Under the law, anyone can sue someone who has, performs, or aids in an abortion that occurs at least six weeks after a pregnant person’s last period. In other words, it’s not a Texas agency or Texas official who holds people accountable, but anyone in the United States who wants to bring suit—which means it’s not actually Texas that’s violating the abortion restrictions; it’s just a private individual exercising a civil cause of action. (Despite their best efforts, the law is up for review in federal court.)

The leaked opinion removes the right to have an abortion by overturning Roe and Casey. Justice Alito, who wrote the draft, says he’s not convinced that abortion is or was deeply rooted in American history or tradition.

The major difference between Roe and Alito’s draft opinion is the level of specificity at which they examine how deeply rooted the right to an abortion is in American history and tradition. Roe says the right to have an abortion is wrapped up in the right to privacy a person has when making healthcare decisions with their physician; so, the Court examined how deeply rooted this right to privacy is in American history and tradition (rather than abortion specifically). Alito, on the other hand, says that’s wrong; he says the Court must examine abortion specifically—and, he says, there was never a right to have an abortion before Roe and, in fact, most states and the common law throughout history made abortion illegal.

If the Court does overturn Roe and Casey, we revert to the pre-1973 landscape: All states could restrict abortion as they see fit, with little to no federal rule or review. It’s unclear what impact this will have on abortion-restriction schemes generally, but it will undoubtedly result in tighter restrictions overall. More liberal and centrist states will probably not see much change in their laws. More conservative states, however, will most likely pass more restrictive laws—similar to Mississippi’s or Texas’s restrictions.

For most people—those who live in more liberal states and those with enough money to travel to them—abortion will remain legal and available. For those who live in more restrictive states and do not have the means to travel, abortion will most likely become harder or unattainable.

Justice Alito used the Due Process Clause to strike down the right to have an abortion. There’s a reason: the right to have an abortion exists because of the Due Process Clause.

The right to have an abortion is not listed in the Constitution. Many rights are not—the right to marry (and to marry someone from any race or gender or sex), the right to have sex with whom you wish, the right to be treated the same as anyone of another race—but they are rights nonetheless because of the Due Process Clause and the Equal Protection Clause. Both Clauses recognize, echoing the Ninth Amendment, that there are many unwritten rights central to being an American, in our history and tradition and in our ideals as a country. And though the Clauses may even overlap on the recognition of certain rights, the way each clause recognizes rights is different from the other.

Everyone knows the Equal Protection Clause—or, at least, the effect of it. It’s in the Fourteenth Amendment, passed and ratified shortly after the Civil War, and it guarantees that everyone in America has the right to be treated equally before government, the right to “equal protection of the laws.” The Equal Protection Clause, or EPC in short, creates a laundry list of rights, many of which were not recognized in American history or tradition. This is necessarily true: Congress created the EPC after the Civil War to forever establish that equality—though not always part of our history and tradition—is central to American life moving forward. The Supreme Court has relied on this to create new rights, rather than recognizing deeply rooted ones, for those who are not being treated equally. See, for example, the Court’s decision in Brown v. Board of Education, which dismantled racial segregation, and Obergefell, which legalized gay marriage.

The Due Process Clause (DPC), on the other hand, is the heavy lifter of countless rights we recognize in America. It’s in the Fifth and Fourteenth Amendments, and it ensures that the government cannot deprive anyone of life, liberty, or property without due process of law. The right is broken down into many elements—with interpretations for virtually every word in the Clause—and wrapped into two major components: substantive due process and procedural due process. And, most relevant, rights exist under the DPC only when they are “deeply rooted in [America’s] history and tradition.” One example is the right to privacy.

The right to have an abortion is a privacy right. While this is not particularly intuitive—most people would assume the right to have an abortion is rooted in equality—it is the law because of Roe. The Supreme Court heard argument for and issued its ruling in Roe in 1973. At the time, the Equal Rights Amendment of 1972 was gaining steam and, to all observers at the time, appeared to be on a fast track to ratification while the Court considered Roe. This leads to one explanation for Roe’s curious holding: the Court did not want the Equal Rights Amendment to fully legalize abortion, so, the Court reframed the right to have an abortion as a right to privacy rather than a right to equality. This was a problem because the right to privacy under the DPC was still controversial to some, only first recognized less than ten years earlier, in 1965. Today, we reap the consequences of the Court’s decision to frame the right to have an abortion as a right to privacy under the DPC rather than a right to equality under the EPC.

Maybe. The Supreme Court determines cases in stages, and there’s still time for justices to change sides or opinions and make edits to draft opinions. As it stands, five justices have signed onto the majority opinion—but one or more of them may change their mind.

There are two leading theories on how the case will shake out. One, that the majority will stay the same and Alito’s leaked opinion will be published largely as it currently stands. Two, that one or more of the majority justices will break off, possibly with Justice Roberts (whom we know is not part of the majority), to force the Court to compromise on a softer change (like restricting but not overturning Casey’s undue-burden test).

The main avenue for obtaining the ability to have safe access to an abortion is through Congress. Congress can pass a law at any time to legalize abortion—either equally or through a baseline—in all fifty states. Those interested in contacting their local congresspersons can find a list here.

Another route—far easier but much riskier—is waiting for the Court’s ideology spectrum to balance. There are currently six conservative-leaning justices. (For decades, the Court was split 5–4, but the death of Ruth Bader Ginsburg during Trump’s presidency shifted it to 6–3.) If the liberals can make up ground back to 5–4 (conservative–liberal) or even 5–4 (liberal–conservative), then it’s possible they could overturn Alito’s opinion and reinstate Roe and Casey (or set a new standard for abortion rights—perhaps under the EPC or a combination of the EPC and DPC).

The leaked opinion is almost certainly insufficient to support a future overturning of both Loving and Obergefell. In a way, the right to have an abortion was a prisoner to its history. As discussed above, Roe held that abortion rights sounded under only the right to privacy under the Due Process Clause and not the Equal Protection Clause.

But Loving and Obergefell were decided on more than just the DPC—the Supreme Court held that they are rights under a combination of the DPC and EPC. The right to marry (interracially in Loving and same-sex in Obergefell) did not need to be deeply rooted in American history and tradition because they are rights under the EPC. As Obergefell explained (while referencing Loving), “With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: ‘To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.’”

This is not to say that the Court’s conservative wing will not try to overturn these cases, and more. But the likelihood of their success is very low. Justice Alito’s leaked opinion went to great lengths to establish, however incorrectly, that abortion rights exist under only the DPC and not the EPC—and this agreed with fifty years of Court precedent. This simply does not apply to Loving and Obergefell (both of which very explicitly apply both the EPC and DPC), as well as other landmark cases that many believe may be at risk.

[1]   This was the first abortion-related Supreme Court case in which a person who could experience pregnancy—Justice Sandra Day O’Connor—participated. Justice O’Connor was one of the authors of the Court’s plurality opinion.

Back