July/August 2022 Church & State Magazine

The End Of Roe: Supreme Court Overturns Landmark 1973 Abortion Rights Ruling

  Rob Boston

Less than an hour after the U.S. Supreme Court struck down the constitutional right to abortion the morning of June 24, Americans United President and CEO Rachel Laser issued a statement making it clear that the fight is not over.

“The Supreme Court abolished the constitutional right to abortion in an opinion that is a direct attack on the separation of church and state,” Laser said. “Religious freedom demands the right to an abortion so people can make their own reproductive decisions according to their own principles. Abortion bans undermine religious freedom by attempting to impose one religious viewpoint on all of us. Americans United is readying religious freedom litigation which will bring this argument to our courts.”

While details are still being worked out, Americans United and its allies plan to bring a case arguing that for some people, the ability to receive an abortion is essential to religious freedom. In Jewish tradition, for example, if a fetus endangers the life of the mother, an abortion is required.

The court’s 6-3 ruling in Dobbs v. Jackson Women’s Health Organization wasn’t unexpected. A draft of the opinion, written by Justice Samuel A. Alito, was leaked to Politico in an unprecedented move May 2. Alito’s final opinions closely tracked the draft, with some changes.

But the core of the opinion did not change: After 49 years, Roe v. Wade and a 1991 case, Planned Parenthood v, Casey, that affirmed it, are no more.

“The Constitution does not confer a right to  abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Alito wrote.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote. According to his legal theory, if a right is not explicitly mentioned in the Constitution, it must be “deeply rooted in this Nation’s history and tradition” to qualify for protection. Abortion, he claimed, fails this test.

Alito’s opinion was joined by Justices Amy Coney Barrett, Clarence M. Thomas, Brett M. Kavanaugh and Neil M. Gorsuch. Chief Justice John G. Roberts agreed that a Mississippi law banning abortion after 15 weeks should be upheld, but he wrote that he would not have overturned Roe.

The court’s three liberals – Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – dissented. In unusually sharp language, the three warned that the very legitimacy of the Supreme Court is at stake.

“[T]his Court betrays its guiding principles,” the trio wrote. “With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”

Reaction to the ruling was swift. Christian nationalist organizations hailed what they considered a long-sought victory.

“Today, on behalf of Liberty University, I want to express our gratitude to Almighty God for the landmark decision in Dobbs v. Jackson Women’s Health Organization handed down by the Supreme Court of the United States,” Jerry Prevo, president of Liberty University, said in a statement. “While this does not effectively end abortion in America, it is a monumental step in the direction of protecting life and placing that decision squarely in the hands of the American people.”

Alliance Defending Freedom, in a statement, blasted the “Roe v. Wade abortion regime, which positioned the U.S. among the most extreme six countries in the world, along with China and North Korea, permitting abortion on demand throughout all nine months of pregnancy” – a factually incorrect statement, to put it mildly.

The U.S. Conference of Catholic Bishops also celebrated the ruling and called for more abortion bans.

“America was founded on the truth that all men and women are created equal, with God-given rights to life, liberty, and the pursuit of happiness,” Archbishops José H. Gomez of Los Angeles and William E. Lori of Baltimore, said in a statement. “This truth was grievously denied by the U.S. Supreme Court’s Roe v. Wade ruling, which legalized and normalized the taking of innocent human life. We thank God today that the Court has now overturned this decision. We pray that our elected officials will now enact laws and policies that promote and protect the most vulnerable among us.”

Other far-right groups lauded former President Donald Trump for appointing Gor­such, Kavanaugh and Barrett to the high court, thus shifting the balance and making the repeal of Roe possible.

It didn’t take long for the ruling’s fallout to be felt politically. Several states had “trigger laws” on their books, measures that would go into effect in case Roe were overturned. Clinics in those states closed immediately.

Reproductive rights advocates at the Guttmacher Institute said abortion is already illegal in seven states: Arkan­sas, Kentucky, Louisi­ana, Mis­souri, Oklahoma, South Dakota and Utah. Bans in Idaho, Texas and Tennessee will go into effect 30 days after the ruling. Bans are also expected to be in place soon in Mississippi, North Dakota and Wyo­ming.

Several states are expected to face political battles over the issue. In Virginia, Gov. Glenn Youngkin (R) has called on legislators to ban abortions after 15 weeks. Fights are expected in Ohio, Wisconsin, Pennsylvania, Mich­i­gan and others as well.

A number of states are expected to keep abortion legal, including some of the country’s most populous, such as California, New York and Illinois. Anti-abortion advocates are aware that women of means in states where the procedure is banned will travel to these states to obtain abortions – and they’re ready for that. The Washington Post reported on June 26 that anti-abortion groups are already looking ahead to more restrictions, among them laws that bar women from crossing state borders for the purpose of obtaining abortions.

Anti-abortion groups also plan to push for a national law banning abortion in all 50 states, laws blocking the distribution of abortion-inducing pills and even a constitutional amendment enshrining a “right to life” sometimes called “the personhood amendment” favored by U.S. Sen. Marco Rubio (R-Fla.).

“It’s not over,” Oklahoma state Rep. Todd Russ (R-Cordell) told The Post, adding that new laws undermining reproductive freedom are erupting like “popcorn in a popcorn popper.”

The Dobbs ruling also sparked fears that other constitutional rights may soon be on the chopping block. In the majority opinion, Alito took pains to insist that it applies only to that sole issue – abortion — and does not implicate other rights.

But Thomas was having none of it. In his concurring opinion, Thomas listed several rulings that, in his view, are ripe to be overturned. These include Griswold v. Connecticut, a 1965 ruling that protects the right of married couples to use birth control; Lawrence v. Texas from 2003, which struck down state laws criminalizing same-sex relationships between consenting adults sometimes called “sodomy laws”; and 2015’s Obergefell v. Hodges, which extended marriage equality nationwide and nullified laws restricting marriage to heterosexual couples only.

AU’s Laser emphasized that no one should assume these other rights are secure.

“The court’s decision to eliminate the right to an abortion is an assault on our equality and freedom,” Laser remarked. “It’s a major win for religious extremists and a green light to bring other extreme, retrogressive cases. The court has opened the door to a nationwide abortion ban. The right to contraception is at risk. So are LGBTQ rights. So is progress on racial justice. Religious extremists and their lawmaker allies are willing to destroy our democracy to force all of us to live by their narrow beliefs. None of our rights are safe.

“The foundational principle of separation of church and state is meant to protect us against that future and to safeguard our right to live as ourselves and believe as we choose,” she added. “Our laws must not allow anyone to use their religious beliefs to harm others. Allowing one person’s religious beliefs to dictate another’s personal medical and moral decisions is the very definition of harm. We’ll say it again: Reproductive freedom is religious freedom.”

 

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