Anaya Nolan
The Roe v. Wade decision by the US Supreme Court in 1973 decriminalized abortion nationwide, ruling that the right to liberty in the Constitution protects personal privacy, which includes the right to decide whether to continue a pregnancy. However, in 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This has led to a rapid shift in the abortion access landscape, with several states adopting laws that severely restrict or ban abortion. The changing composition of the Supreme Court, influenced by anti-abortion politicians, played a significant role in the reversal of Roe v. Wade, despite its longstanding acceptance by a majority of Americans.
| Characteristics | Values |
|---|---|
| Date of Roe v. Wade ruling | 22 January 1973 |
| Decision | 7-2 |
| Ruling | Unduly restrictive state regulation of abortion is unconstitutional |
| Reasoning | Right to privacy is implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment |
| Effect | Abortion decriminalised nationwide |
| Date overturned | June 2022 |
| Decision | 5-4 |
| Rationale | No constitutional right to abortion |
| Effect | 18 states banned or severely restricted abortion |
| Impact | People forced to travel long distances to access abortion care |
| Strategies to restrict abortion access | Targeting medication abortion |
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What You'll Learn
The makeup of the Supreme Court changed
The appointment of these justices was part of a broader strategy by abortion opponents to install judges who would be sympathetic to their cause. This strategy was successful, and the changing composition of the Court led to a series of decisions that gradually weakened Roe v. Wade. For example, after 1992, the Court evaluated abortion regulations under an "undue burden" standard that allowed states to restrict abortion as long as the burdens on access were not too severe. This led to a range of restrictions that made abortion more difficult to access, particularly for marginalized communities.
The appointment of these new justices also reflected a shift in political attitudes towards abortion. Despite abortion being common and accepted by a majority of Americans, with nearly 1 in 4 women in America having an abortion by age 45, anti-abortion politicians worked to install justices who would overturn Roe v. Wade. This was a politically toxic move, as 85% of Americans believe that abortion should be legal, and a majority of Americans have supported abortion rights for decades.
The impact of the changing makeup of the Supreme Court was evident in the Court's ruling in Dobbs v. Jackson Women's Health Organization in 2022. This ruling overturned Roe v. Wade, eliminating the federal constitutional right to abortion. As a result, many states have banned or severely restricted abortion access, with particularly harmful effects on communities of color and other marginalized groups.
The changing makeup of the Supreme Court, with the appointment of justices hostile to reproductive rights, thus played a key role in enabling the passage of anti-abortion laws despite Roe v. Wade. This shift in the Court's composition reflected a broader political and ideological battle over abortion rights, with significant consequences for people's lives and freedoms.
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The ruling in Dobbs v. Jackson Women's Health Organization
In 2022, the U.S. Supreme Court ruled in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade, the 1973 decision that guaranteed a constitutional right to abortion. The ruling in Dobbs v. Jackson Women's Health Organization abandoned nearly 50 years of precedent and marked the first time in history that the Supreme Court had taken away a fundamental right.
The case originated in Mississippi, where the state sought to uphold its abortion ban and overturn Roe v. Wade. The Supreme Court's decision in Dobbs ruled that there is no federal constitutional right to abortion, and it gave states the power to regulate or restrict abortion access. This decision eliminated the protection that the liberty clause in the 14th Amendment affords to privacy, specifically a woman's decision whether to continue a pregnancy.
The ruling in Dobbs has had significant implications for abortion access in the United States. In the wake of the decision, more than a dozen states have banned abortion outright, forcing people to travel long distances to access abortion care or carry unwanted pregnancies. This has disproportionately impacted communities of color, low-income individuals, and young people, who already faced obstacles to abortion care even under Roe.
The Supreme Court's makeup changed between 2016 and 2020, with the appointment of three new justices known for their opposition to reproductive rights. This shift in the Court's composition contributed to the overturning of Roe v. Wade, despite public opinion polls showing that a majority of Americans supported the decision and wanted abortion to remain legal.
The Dobbs ruling has sparked concerns about the erosion of reproductive rights and the potential for further rollback of other fundamental rights. It remains to be seen what the full impact of the decision will be, but it has already led to a wave of abortion bans and restrictions across the country, with more states working to pass additional bans.
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The right to privacy
The Roe v. Wade decision in 1973 was a landmark ruling by the U.S. Supreme Court, which recognised that the decision to continue or terminate a pregnancy is protected by the constitutional right to privacy. The Court held that the Fourteenth Amendment's Due Process Clause protects an individual's right to privacy, encompassing a woman's right to choose whether to terminate her pregnancy. This right was deemed fundamental, requiring the strictest legal scrutiny for any restrictions.
The Roe v. Wade ruling built upon earlier Supreme Court decisions that affirmed a right to privacy in personal and intimate matters, including those related to child-rearing, marriage, procreation, and contraception. The Court's recognition of a constitutional right to privacy in Griswold v. Connecticut (1965) set a precedent, acknowledging "zones of privacy" within the First, Third, Fourth, and Fifth Amendments. This precedent was further strengthened by Roe v. Wade, which explicitly included reproductive decision-making within the scope of privacy rights.
In the context of Roe v. Wade, the right to privacy meant that the state could not override a woman's decision regarding her pregnancy. However, the Court also acknowledged the state's legitimate interests in protecting both the pregnant woman's health and the potential life of the fetus. This balance allowed for restrictions on abortion after fetal viability, provided exceptions were made to preserve life and health.
The Roe v. Wade decision had far-reaching implications, legalising abortion and making it more accessible and safer nationwide. It placed reproductive rights alongside other fundamental rights, such as freedom of speech and religion, under the highest level of constitutional protection. Despite its impact, Roe v. Wade did not ensure equal access for all, and low-income individuals, people of colour, and young people still faced obstacles in obtaining abortion care.
In 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This reversal sparked concerns about the erosion of privacy rights and the potential impact on other areas of family planning and personal autonomy. The Court's decision in Dobbs v. Jackson Women's Health Organization abandoned decades of precedent, marking the first time the Supreme Court removed a fundamental right.
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The right to liberty
In Roe v. Wade, the Supreme Court ruled that the right to liberty in the Constitution, protecting personal privacy, includes the right to decide whether to continue a pregnancy. This placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring the highest degree of constitutional protection, known as "strict scrutiny".
The Supreme Court held that no interest was compelling enough to ban abortion before fetal viability. After the point of viability, the state could ban abortion or take other steps to promote its interest in protecting the fetus. However, even after this point, abortion must be permitted to protect a patient's life and health.
The Roe v. Wade decision was based on the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law". The Court interpreted the term "liberty" broadly, seizing upon Justice Thurgood Marshall's definition, which emphasised that the term must be interpreted broadly in a free society. This interpretation of the Fourteenth Amendment's liberty clause was used to justify the ruling that the right to decide whether to continue a pregnancy comes within the constitutional protection that the amendment affords to privacy.
The Roe v. Wade decision was unpopular and politically toxic for anti-abortion politicians. Despite this, the decision was overturned by the Supreme Court in 2022, eliminating the federal constitutional right to abortion. This was due to a change in the makeup of the Supreme Court, with anti-abortion politicians installing three new Supreme Court justices with records hostile to reproductive health and rights.
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The right to reproductive freedom
However, despite the protections afforded by Roe v. Wade, reproductive freedom remained elusive for many. Low-income individuals, people of colour, young people, and others continued to face obstacles to abortion care. This was due in part to state regulations that made abortion increasingly difficult to access for these communities. In practice, courts upheld a range of restrictions, such as mandatory waiting periods, counselling requirements, and restrictions on abortion methods, which disproportionately impacted those with limited resources.
The makeup of the Supreme Court changed between 2016 and 2020, with the appointment of three new justices known for their opposition to reproductive rights. This shift in the Court's composition set the stage for a rollback of abortion rights. In 2022, the Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This decision in Dobbs v. Jackson Women's Health Organization marked the first time the Supreme Court had taken away a fundamental right, and it sparked widespread opposition.
The impact of the overturning of Roe v. Wade has been significant. As of June 2022, 18 states have banned or severely restricted abortion, with more working to pass bans. These abortion bans have disproportionately harmed communities of colour, where systemic racism has already limited access to opportunity and healthcare. The right to reproductive freedom, deeply grounded in the Constitution, has been severely curtailed, and those seeking abortions now face criminal penalties, loss of employment, and family disruption.
The fight for reproductive freedom continues, with reproductive rights champions working to protect and expand access to abortion. Despite the setbacks, advocates remain committed to ensuring that individuals can make and act on decisions about their reproduction, free from government interference. This includes legal challenges to restrictive abortion laws and efforts to rebuild jurisprudence to align with the promise of the 14th Amendment, guaranteeing liberty, equal protection, and life.
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Frequently asked questions
Roe v. Wade is a 1973 legal case in which the U.S. Supreme Court ruled that unduly restrictive state regulation of abortion is unconstitutional, recognising it as a fundamental right.
The makeup of the Supreme Court changed between 2016 and 2020, with anti-abortion politicians installing three new Supreme Court justices. In 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion.
The Roe v. Wade decision decriminalised abortion nationwide and placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and religion. However, it did not make access a reality for everyone, with low-income people, people of colour, and young people still facing obstacles to abortion care.
After Roe v. Wade was overturned, several states adopted laws that drastically limited the availability of abortion. As of March 31, 2024, the number of brick-and-mortar abortion clinics in the U.S. decreased by 5%, despite an increase in abortions between 2020 and 2023.
