Keith Mack
The recent overturning of Roe v. Wade has sparked debate about the nature of settled law and the Supreme Court's role in shaping abortion rights in the US. For nearly 50 years, Roe v. Wade was considered a landmark ruling, establishing the right to abortion as a matter of privacy. However, despite being described as an important precedent and settled law by conservative justices during confirmation hearings, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, leading to questions about the finality of legal precedents and the implications for abortion rights and public opinion.
| Characteristics | Values |
|---|---|
| Status of Roe v. Wade | Roe v. Wade was the law of the land regarding abortion for nearly 50 years |
| Supreme Court's stance | The Supreme Court generally doesn't invalidate its own decisions but makes new ones |
| Public opinion | 80% of Americans support the right to abortion in at least some circumstances |
| Roe v. Wade's impact | Established the right to abortion as a matter of privacy |
| Support for Roe v. Wade | Supporters held it up as a beacon for women's independence and equality |
| Opposition to Roe v. Wade | Critics viewed it as an overreach by the Supreme Court |
| Subsequent decisions | Several cases upheld the decision while also modifying standards related to abortion |
| State laws | Many states continued to pass laws contradicting the standards laid out in Roe v. Wade |
| Confirmation hearings | Justices described Roe v. Wade as an important precedent and "settled law" |
| Overturning Roe v. Wade | The Supreme Court overturned Roe v. Wade in the 2022 case Dobbs v. Jackson Women's Health Organization |
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What You'll Learn
Roe v. Wade was the law of the land for nearly 50 years
Roe v. Wade was a landmark decision of the U.S. Supreme Court in 1973, which ruled that the Constitution of the United States protected the right to have an abortion before fetal viability. The ruling struck down many state abortion laws and sparked an ongoing abortion debate in the United States. The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who in 1969, became pregnant with her third child and wanted an abortion, but lived in Texas, where abortion was only legal when necessary to save the mother's life.
The Roe v. Wade ruling held that a set of Texas statutes criminalizing abortion in most instances violated a constitutional right to privacy, implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment. For the following 49 years, states, healthcare providers, and citizens fought over what limits the government could place on abortion access, particularly during the second and third trimesters. However, abortion was fundamentally legal in all 50 states during that period.
Roe v. Wade was overturned by the Supreme Court in 2022, nearly 50 years after the initial ruling. The case that overturned Roe v. Wade was Dobbs v. Jackson Women's Health Organization, which centred around the question of whether bans on all pre-viability abortions are unconstitutional. The Supreme Court's decision to uphold the Mississippi law and overturn Roe v. Wade was based on the argument that abortion is not a legitimate unenumerated right, as it is not "deeply rooted in the Nation's history and tradition".
The overturning of Roe v. Wade has had significant implications for abortion access and reproductive rights in the United States, with states now having the power to restrict or ban abortion. The decision has been controversial and has sparked ongoing debates and legislative efforts regarding abortion rights and women's health.
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The Supreme Court doesn't invalidate its own decisions
The Supreme Court has the power to decide what federal law is or is not constitutional. While the Supreme Court can make mistakes, it generally does not invalidate its own decisions. Instead, it creates new ones. For example, in the decades following Roe v. Wade, several cases upheld the decision while also modifying standards related to abortion. This is how abortion rights changed over time, even without a complete overturning of Roe v. Wade.
The Mississippi abortion statute presented the conservative justices of the court with a unique opportunity to overturn the precedent set by Roe v. Wade. In 2022, the Supreme Court decided to overturn Roe v. Wade entirely, ruling that the Constitution does not protect a right to abortion under the U.S. Constitution. This ruling came in the Dobbs v. Jackson Women's Health Organization case.
The Supreme Court's decision to overturn Roe v. Wade has led to public concern and criticism, with many questioning the integrity of the Supreme Court justices. During their confirmation hearings, several conservative justices described Roe v. Wade as an important precedent that had a profound impact on American life, with some even referring to it as "settled law". However, their decision to overturn the precedent has led to allegations that they lied during their confirmation hearings.
Despite the controversy, the Supreme Court has a history of issuing major abortion rulings, and the decision in Dobbs v. Jackson Women's Health Organization is just one of many. Other notable cases include Planned Parenthood v. Danforth (1976), Maher v. Roe (1979), Colautti v. Franklin (1979), and Harris v. McRae (1980).
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Justices' views on Roe during confirmation hearings
During his confirmation hearing in 2006, Justice Samuel Alito Jr. said that Roe v. Wade was an "important precedent of the Supreme Court." However, he declined to call the ruling "settled law." In response to Senator Richard J. Durbin's question about whether Roe v. Wade was the "settled law of the land," Alito replied that it depended on the definition of "settled." If settled meant that it couldn't be re-examined, then that was one thing. However, if settled meant that it was a precedent entitled to respect under the doctrine of stare decisis, then it was a precedent protected and entitled to respect.
During his confirmation hearing in 2017, Neil Gorsuch stated that Roe v. Wade was a "precedent of the U.S. Supreme Court" that had been reaffirmed in Casey in 1992 and in several other cases. Gorsuch emphasized that a good judge would consider it as precedent and treat it like any other case. However, he refused to signal how he would rule in future abortion cases, stating that doing so would send the wrong message to the American people about the role of a judge's personal views.
During his confirmation hearing in 2018, Brett Kavanaugh stated that Roe v. Wade was an "important precedent" that had been reaffirmed many times. He also acknowledged that it was "precedent on precedent," suggesting that the protections it conferred had stood the test of time. Kavanaugh added that he understood the significance of the issue and always considered the real-world effects of the Supreme Court's decisions. However, he declined to directly answer whether the decision was "correct law."
During her confirmation hearing in 2020, Amy Coney Barrett was noncommittal about whether she would overturn Roe v. Wade. She emphasized that it would be wrong and a violation of ethics for her to give an opinion on a precedent that was still being litigated. Barrett also disagreed with the notion that Roe was a super-precedent, stating that it didn't fall into that category as it was still being questioned by scholars and litigated in courts.
During his confirmation hearing in 1991, Clarence Thomas refused to comment on his views regarding Roe v. Wade, stating that he did not have a personal opinion on the outcome. He emphasized the importance of impartiality and openness in approaching such cases. Once seated on the court, however, Thomas made his views clear. By 2020, he wrote a dissenting opinion, stating that the court's "abortion precedents are grievously wrong and should be overruled."
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The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization
The Court also noted that the history of abortion in the U.S. has been "as a crime". At the time the Fourteenth Amendment was adopted, three-quarters of the states had made abortion a crime at any stage of pregnancy. This remained the case until Roe v. Wade. In this case, the Supreme Court granted a writ to address whether all pre-viability prohibitions on elective abortions are unconstitutional. Thomas Dobbs, a Mississippi State Health officer, filed a petition for certiorari, which was granted.
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Abortion regulation in the United States
In the decades following Roe v. Wade, several significant abortion rulings were issued by the Supreme Court. For example, in Planned Parenthood v. Danforth (1976), the court blocked a law requiring spousal consent for abortion, while in Maher v. Roe (1979), it permitted states to exclude abortion services from Medicaid coverage. Other notable cases include Colautti v. Franklin (1979), which struck down a vague Pennsylvania law requiring physicians to try to save the life of a viable fetus, and Harris v. McRae (1980), where the court upheld the Hyde Amendment, restricting federal funding for abortions.
Despite Roe v. Wade being considered a "settled law" by many, the appointment of conservative justices to the Supreme Court shifted the landscape of abortion rights. In 2022, the Supreme Court overturned Roe v. Wade in the case Dobbs v. Jackson Women's Health Organization. This decision was influenced by a challenge out of Mississippi, where a state abortion statute presented an opportunity for conservative justices to overturn the precedent. Justices Brett Kavanaugh and Neil Gorsuch, who voted to overturn Roe, had previously described it as a "precedent" and "settled law" during their confirmation hearings, leading to accusations of lying under oath.
The overturning of Roe v. Wade has significant implications for abortion regulation in the United States, with abortion rights no longer federally protected. While some state constitutions independently protect abortion rights, the decision has empowered those opposed to abortion to challenge constitutional privacy rights, potentially leading to further legal battles. The impact of this decision on public opinion of the court remains to be seen, especially considering that recent polls show a majority of Americans support abortion rights in at least some circumstances.
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Frequently asked questions
Roe v. Wade is one of the most famous Supreme Court cases of all time. It established the right to abortion as a matter of privacy and has remained at the forefront of American politics.
In 2022, the United States Supreme Court decided to overturn Roe v. Wade entirely. The Mississippi abortion statute presented the conservative justices on the court with an opportunity to overturn the precedent.
During confirmation hearings, conservative justices described Roe v. Wade as an important precedent that had a profound impact on American life. Justice Neil Gorsuch, for example, called it a "precedent of the U.S. Supreme Court", while also emphasizing that it could be overturned. Justice Brett Kavanaugh proclaimed his admiration for former justice Rehnquist's Roe dissent.
