“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
Justice Alito surveyed the precedents cited by Roe and Casey to justify their protection of abortion. They included ones on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of one’s children and the right not to be sterilized without consent.
He also cited two “post-Casey decisions,” Obergefell and Lawrence v. Texas in 2003, which struck down a Texas law that made gay sex a crime.
Justice Alito, a careful draftsman, then seemed to distinguish between the two sets of decisions.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
Tellingly, perhaps, that passage in the draft opinion was silent on whether its conclusion undermined the two post-Casey decisions on gay rights.
In general, Justice Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”
The State of Roe v. Wade
Card 1 of 4What is Roe v. Wade? Roe v. Wade is a landmark Supreme court decision that legalized abortion across the United States. The 7-2 ruling was announced on Jan. 22, 1973. Justice Harry A. Blackmun, a modest Midwestern Republican and a defender of the right to abortion, wrote the majority opinion.
What was the case about? The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. That point, known as fetal viability, was around 28 weeks when Roe was decided. Today, most experts estimate it to be about 23 or 24 weeks.
What else did the case do? Roe v. Wade created a framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother. In 1992, the court tossed that framework, while affirming Roe’s essential holding.
What would happen if Roe were overturned? Individual states would be able to decide whether and when abortions would be legal. The practice would likely be banned or restricted heavily in about half of them, but many would continue to allow it. Thirteen states have so-called trigger laws, which would immediately make abortion illegal if Roe were overturned.
“None of these rights has any claim to being deeply rooted in history,” he added, a point that could be made about same-sex marriage, too.