roe v wade opinion essay

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Roe v. Wade

By: History.com Editors

Updated: April 21, 2023 | Original: March 27, 2018

Roe v. Wade was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution . Prior to Roe v. Wade , abortion had been illegal throughout much of the country since the late 19th century. Since the 1973 ruling, many states imposed restrictions on abortion rights. The Supreme Court overturned Roe v. Wade  on June 24, 2022, holding that there was no longer a federal constitutional right to an abortion.

Abortion Before Roe v. Wade

Until the late 19th century, abortion was legal in the United States before “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy.

Some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.

In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths.

Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born, Protestant women.

In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country.

During the 1960s, during the women’s rights movement, court cases involving contraceptives laid the groundwork for Roe v. Wade .

In 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.S. Constitution . And in 1972, the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults.

Meanwhile, in 1970, Hawaii became the first state to legalize abortion, although the law only applied to the state’s residents. That same year, New York legalized abortion, with no residency requirement. By the time of Roe v. Wade in 1973, abortion was also legally available in Alaska and Washington .

In 1969, Norma McCorvey, a Texas woman in her early 20s, sought to terminate an unwanted pregnancy. McCorvey, who had grown up in difficult, impoverished circumstances, previously had given birth twice and given up both children for adoption. At the time of McCorvey’s pregnancy in 1969 abortion was legal in Texas—but only for the purpose of saving a woman’s life.

While American women with the financial means could obtain abortions by traveling to other countries where the procedure was safe and legal, or pay a large fee to a U.S. doctor willing to secretly perform an abortion, those options were out of reach to McCorvey and many other women.

As a result, some women resorted to illegal, dangerous, “back-alley” abortions or self-induced abortions. In the 1950s and 1960s, the estimated number of illegal abortions in the United States ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute.

After trying unsuccessfully to get an illegal abortion, McCorvey was referred to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws.

In court documents, McCorvey became known as “Jane Roe.”

In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Henry Wade, the district attorney of Dallas County, where McCorvey lived.

Earlier, in 1964, Wade was in the national spotlight when he prosecuted Jack Ruby , who killed Lee Harvey Oswald , the alleged assassin of President John F. Kennedy .

Supreme Court Ruling

In June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. Afterward, Wade declared he’d continue to prosecute doctors who performed abortions.

The case eventually was appealed to the U.S. Supreme Court. Meanwhile, McCovey gave birth and put the child up for adoption.

On Jan 22, 1973, the Supreme Court, in a 7-2 decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. In a majority opinion written by Justice Harry Blackmun , the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment .

The court divided pregnancy into three trimesters, and declared that the choice to end a pregnancy in the first trimester was solely up to the woman. In the second trimester, the government could regulate abortion, although not ban it, in order to protect the mother’s health.

In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.

Legacy of Roe v. Wade

Norma McCorvey maintained a low profile following the court’s decision, but in the 1980s she was active in the abortion rights movement.

However, in the mid-1990s, after becoming friends with the head of an anti-abortion group and converting to Catholicism, she turned into a vocal opponent of the procedure.

Since Roe v. Wade , many states imposed restrictions that weaken abortion rights, and Americans remain divided over support for a woman’s right to choose an abortion.

In 1992, litigation against Pennsylvania’s Abortion Control Act reached the Supreme Court in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey . The court upheld the central ruling in Roe v. Wade but allowed states to pass more abortion restrictions as long as they did not pose an “undue burden."

Roe v. Wade Overturned

In 2022, the nation's highest court deliberated on Dobbs v. Jackson Women’s Health Organization , which regarded the constitutionality of a Mississippi law banning most abortions after 15 weeks of pregnancy. Lower courts had ruled the law was unconstitutional under Roe v. Wade . Under Roe , states had been prohibited from banning abortions before around 23 weeks—when a fetus is considered able to survive outside a woman's womb.

In its decision , the Supreme Court ruled 6-3 in favor of Mississippi's law—and overturned Roe after its nearly 50 years as precedent.

Abortion in American History. The Atlantic . High Court Rules Abortion Legal in First 3 Months. The New York Times . Norma McCorvey. The Washington Post . Sarah Weddington. Time . When Abortion Was a Crime , Leslie J. Reagan. University of California Press .

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The first amendment, supreme court case, roe v. wade (1973).

410 U.S. 113 (1973)

“We . . . conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Selected by

Caroline Fredrickson

Visiting Professor, Georgetown University Law Center and Senior Fellow at the Brennan Center for Justice

Ilan Wurman

Associate Professor, Sandra Day O'Connor College of Law at Arizona State University

At a time when Texas law restricted abortions except to save the life of the mother, Jane Roe (a single, pregnant woman) sued Henry Wade, the local district attorney tasked with enforcing the abortion statute. She argued that the Texas law was unconstitutional. The Supreme Court agreed, holding that the right of privacy, inherent in the Due Process Clause of the Fourteenth Amendment, protects a woman’s choice to have an abortion. That right is limited, however, as the pregnancy advances, by the State’s interest in maternal health and in fetal life after viability. Amid national debate over this issue, this was the first time the Court took up this question and affirmed the “right to choose,” as it is often titled.

Read the Full Opinion

Excerpt: Majority Opinion, Justice Harry Blackmun

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. . . .

The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. [A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim . . .  that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. 

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. . . .

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. . . .

Excerpt: Dissent, Justice William Rehnquist

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent. . . .

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. . . . The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective . . . . But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. . . .

The fact that a majority of the States reflecting, after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. . . . By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.” . . .

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. . . .

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Roe v. Wade, 410 U.S. 113 (1973)

A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.

The law in Texas permitted abortion only in cases where the procedure was necessary to save the life of the mother. When Dallas resident Norma McCorvey found out that she was pregnant with her third child, she tried to falsely claim that she had been raped and then to obtain an illegal abortion. Both of these efforts failed, and she sought the assistance of Linda Coffee and Sarah Weddington, who filed a claim using the alias Jane Roe for McCorvey. (The other named party, Henry Wade, was the District Attorney for Dallas County.) McCorvey gave birth to her child before the case was decided, but the district court ruled in her favor based on a concurrence in the 1965 Supreme Court decision of Griswold v. Connecticut, written by Justice Arthur Goldberg. This concurrence had found that there was a right to privacy based on the Ninth Amendment of the Constitution. However, the district court refrained from issuing an injunction to prevent the state from enforcing the law, leaving the matter unresolved.

• Linda Coffee (plaintiff)
• Sarah Weddington (plaintiff)
• Jay Floyd (defendant)

Issue: Whether a plaintiff still has standing to bring a case based on her pregnancy once she has given birth. Holding: Yes. The mootness doctrine does not bar her case from being heard, even though this individual plaintiff's position would no longer be affected, and she did not have an actual case or controversy. This situation fits within the exception to the mootness rule that covers wrongs that are capable of repetition yet evading review. Most cases are not heard through to appeal in a period shorter than a pregnancy, so strictly applying the mootness doctrine would prevent these issues from ever being resolved.

• Harry Andrew Blackmun (Author)
• Warren Earl Burger
• William Orville Douglas
• William Joseph Brennan, Jr.
• Potter Stewart
• Thurgood Marshall
• Lewis Franklin Powell, Jr.

The majority found that strict scrutiny was appropriate when reviewing restrictions on abortion, since it is part of the fundamental right of privacy. Blackmun was uninterested in identifying the exact part of the Constitution where the right of privacy can be found, although he noted that the Court had previously located it in the Fourteenth rather than the Ninth Amendment. The opinion applied a controversial trimester framework to guide judges and lawmakers in balancing the mother's health against the viability of the fetus in any given situation. In the first trimester, the woman has the exclusive right to pursue an abortion, not subject to any state intervention. In the second trimester, the state cannot intervene unless her health is at risk. If the fetus becomes viable, once the pregnancy has progressed into the third trimester, the state may restrict the right to an abortion but must always include an exception to any regulation that protects the health of the mother. The Court, which included no female Justices at the time, appears to have been confused about the differences between the trimester framework and viability, which are not necessarily interchangeable. It is interesting to note that Blackmun was particularly invested in this case and the opinion, since he had worked at the Mayo Clinic in Minnesota during the 1950s and researched the history of abortions there. This may explain why he framed the opinion largely in terms of protecting the right of physicians to practice medicine without state interference (e.g., by counseling women on whether to pursue abortions) rather than the right of women to bodily autonomy.

• Byron Raymond White (Author)
• William Hubbs Rehnquist

White criticized the majority's arbitrary choice of a rigid framework without any constitutional or other legal foundation to support it. He believed that this aggressive use of judicial power exceeded the Court's appropriate role by taking away power that rested with state legislatures and essentially writing laws for them. White argued that the political process was the appropriate mechanism for seeking reform, rather than letting the Court decide whether and when the mother should be a higher priority than the fetus.

• William Hubbs Rehnquist (Author)

Rehnquist expanded on the historical elements of White's argument. He researched 19th-century laws on abortion and the status of the issue at the time of both the Founding and the Fourteenth Amendment. His originalist approach led him to conclude that state restrictions on abortion were considered valid at the time of the Fourteenth Amendment, so its drafters could not have contemplated creating rights that conflicted with it.

Concurrence

• William Orville Douglas (Author)

More concerned with doctrinal sources than Blackmun, Douglas pointed out more forcefully that the Fourteenth Amendment rather than the Ninth Amendment is the appropriate source of the right of privacy.

• Potter Stewart (Author)

Stewart argued that the right of privacy was specifically rooted in the Due Process Clause of the Fourteenth Amendment.

• Warren Earl Burger (Author)

Burger felt that two physicians rather than one should be required to agree to a woman's request for an abortion.

The Court was praised in many circles for its progressive attitude toward evolving social trends, even though the decision was framed in paternalistic language and seemed more focused on protecting physicians than women. However, many commentators have viewed its decision as a prime example of judicial "activism," a term that refers to when the Court is seen to infringe on the authority of other branches of government.. A magnet for controversy to the current day, Roe has been challenged consistently and lacks support from many current members of the Court. The trimester framework proved less workable than the majority had hoped, and decisions such as Planned Parenthood v. Casey have eroded what initially seemed like a sweeping statement in favor of women's rights. Many states that oppose Roe have enacted laws that will go into effect in the event that it is overturned.

U.S. Supreme Court

Roe v. Wade

Argued December 13, 1971

Reargued October 11, 1972

Decided January 22, 1973

410 U.S. 113

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy

must exist at review stages, and not simply when the action is initiated. Pp. 124-125.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good faith state prosecutions pending against him. Samuels v. Mackell , 401 U. S. 66 . Pp. 125-127.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless fully recognize the Court's ruling

that the Texas criminal abortion statutes are unconstitutional. P. 166.

314 F. Supp. 1217 , affirmed in part and reversed in part.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 410 U. S. 207 , DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 171.

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Roe v. Wade (1973)

Primary tabs.

Roe v. Wade is the Supreme Court case that held that the Constitution protected the right to an abortion prior to the viability of the fetus. In 2022, the Supreme Court reversed Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey  (see entries on Dobbs v. Jackson (2022) and  abortion for further details).

Full text of Roe v. Wade (1973)

The case involved a Texas statute that prohibited abortion except when necessary to save the life of the pregnant person. The Supreme Court, in a decision written by Justice Blackmun, originally recognized a privacy interest in abortions. In doing so, the Court had applied the right to privacy established in  Griswold v Connecticut   (1965). At stake in this matter was the fundamental right of an individual to decide whether to terminate their pregnancy. The underlying values of this right included decisional autonomy and physical consequences (i.e., the interest in bodily integrity).

The Court had applied the strict scrutiny test because there was a fundamental right involved. 

The Court had divided the pregnancy period into three trimesters. Originally, the Court asserted that during the first trimester, the decision to terminate the pregnancy was solely at the discretion of the individual. After the first trimester, the state could “ regulate procedure.” Again, originally during the second trimester, the state could regulate (but not outlaw) abortions in the interests of the pregnant individual's health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the pregnant person.

Justice White and Justice Rehnquist’s separate dissents emphasized that the people and the legislatures, not the Court, should weigh this matter. Justice White argued, “Its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court….” Justice Rehnquist believed that the majority had misconstrued “privacy” and argued that “[t]he Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under the standard….”

Abortion in the Supreme Court Post-Roe:

The decision in  Roe  faced a great deal of controversy, and  46 states needed to change their abortion laws  as a result of the holding. Almost 30 years later, the Supreme Court revisited the issue of abortion in  Casey v. Planned Parenthood  (1992). The  Casey  court had originally kept three findings made in  Roe : 

• Individuals have the right to abort pre-viability without undue interference from the state
• The state may restrict abortion post-viability
• The state has a legitimate interest in protecting pregnant individual's health and life of the fetus

In  Gonzales v. Carhart   (2007), the Court had upheld a  federal statute that banned partial-birth abortions . This was the first time since  Roe  that the Supreme Court upheld a ban on a type of abortion. 

In  Whole Women's Health v. Hellerstedt , the Court had found that "[t]wo provisions in a Texas law – requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center – place a substantial obstacle in the path of individuals seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution." For more on the impact of  Hellerstedt , see this  Harvard Law Review note . 

Abortion Post-Dobbs :

In Dobbs v. Jackson , the Court reversed the Roe v. Wade and Casey decisions. The Dobbs court held that the Constitution does not confer a fundamental right to abortion. Consequentially, rational-basis review is the new standard in reviewing state regulations of abortions. Essentially, states are now able to pass regulations for abortions “for legitimate reasons” and if presented with a constitutional challenge, the laws are entitled to a “ strong presumption of validity .” 

[Last updated in June of 2022 by the Wex Definitions Team ]

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Roe v. Wade overturned despite public opinion

Subscribe to governance weekly, william a. galston william a. galston ezra k. zilkha chair and senior fellow - governance studies.

June 24, 2022

What do Americans think about abortion, and how will they react to the Supreme Court’s decision to overturn Roe v. Wade? Although the relationship between attitudes on abortion and on Roe is complex, recent surveys suggest some clear conclusions.

Although some Americans have absolutist views on abortion, most believe that its acceptability depends on circumstances.

Roughly speaking, between 25% and 35% of Americans think that abortion should always be legal, 10% to 15% think it should never be legal, and the remaining 50% to 65% are split between those who think that it should be mostly legal with some exceptions and mostly illegal but with exceptions.

There is broad agreement about the circumstances that warrant abortions and those that do not.

Supermajorities believe that abortions should be permitted when the life or health of the mother is endangered, when the fetus has severe congenital abnormalities with little or no life expectancy, and when pregnancy is the result of rape or incest. Large majorities reject abortions when a married women wants no more children, when an unmarried woman does not want to marry the father, and when a family has low income and cannot afford another child. By contrast, Americans are divided on whether abortions should be permitted when the child would be born with significant but not necessarily life-threatening physical or mental disabilities.

The timing of abortions makes a big difference.  

A recent Gallup survey found that support for broadly available abortions decreased from 67% in the first three months of pregnancy to 36% in the second trimester, and just 20% in the third. In a similar vein, a recent Pew Research Center survey found two-to-one support for legal abortions when the fetus is six weeks old, two-to-one opposition when the fetus is 24 weeks old (roughly the age of viability), and a divided opinion when the fetus is 14 weeks old. The most recent Economist/YouGov poll found that by a plurality of 46% to 37%, Americans support banning abortions after 15 weeks, the linchpin of the Mississippi law that triggered the case the Supreme Court just decided.

The perception of a rising threat to Roe v. Wade appears to have triggered increased support for abortion rights among Democrats.

In its most recent survey, Gallup finds that support for abortion without restrictions increased to a record high, as did the share of Americans who identify as “pro-choice.” These shifts are almost entirely the result of changing sentiments among Democrats. For the first time ever recorded, a majority of Americans now regard abortion as “ morally acceptable .” And 56% of Democrats now regard abortion as a “ very important ” issue, compared to just 42% of Republicans.

The decision by the Supreme Court to overturn Roe will not enjoy majority support.

When Americans are given the choice between overturning Roe and leaving it as it is, between 55% and 60% choose the latter option. When overturning Roe is described as eliminating a “constitutional right,” support for leaving it untouched is even higher. When the choice is characterized as preserving Roe versus returning the matter to the states, the margin in favor of leaving matters as they are shrinks . Even so, when Americans are given the choice between a national standard for abortion and a variety of state laws, they opt for the former . And this means a national standard generally favoring abortion rights. A CBS/YouGov poll found that 58% of Americans would favor a federal law protecting abortion nationwide, while only 33% would support a federal law banning it nationwide—a proposal opposed even by a majority of Republicans.

If Chief Justice John Roberts had gotten his way, opposition to the Court’s decision would probably be less heated.

The draft opinion leaked in early May showed that Roberts did not join the five-justice majority in favor of overturning Roe. He favored a middle position accepting the constitutionality of the Mississippi law banning nearly all abortions after 15 weeks while leaving the general framework of Roe intact—a position favored by a plurality of Americans. If the Chief Justice had persuaded one member of the initial anti-Roe majority to join him, many Americans on both sides of the debate would probably have experienced feelings of relief, and the intensity of the opposition would have diminished.

But now that Roe has been entirely overturned, the data presented in this article suggest that many Americans will protest, and some dispirited Democrats who might not otherwise have participated in the midterm elections will be motivated to vote.

Although abortion is not the top concern for most Americans, it is important enough to make a difference at the margin. And in a closely divided electorate, what happens at the margin counts.

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The uncomfortable problem with Roe v. Wade

The Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito.

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by Ian Millhiser

I believe that the Constitution protects a right to abortion.

I want to state that upfront because the rest of this essay will be highly critical of the Supreme Court’s opinion in Roe v. Wade , and of the open-ended approach to constitutional interpretation exemplified by that decision. As I will argue below, the right to an abortion should be found within the Constitution’s promise of gender equality — an approach which does far more to limit judicial power than the Roe opinion itself.

Roe, the landmark case that first established a constitutional right to abortion, rested on the idea that judges have a practically unlimited power to find rights within the Constitution that aren’t mentioned anywhere within it. The 1973 decision found the right to abortion within a broader “right of privacy,” which itself was found within “the 14th Amendment’s concept of personal liberty and restrictions upon state action.”

The legal name for this kind of constitutional analysis is “substantive due process.” It refers to the theory that certain unenumerated rights — rights that are never explicitly mentioned in the Constitution — are nonetheless implicit in a passage of the 14th Amendment providing that no one shall be denied “liberty” without “due process of law.”

Substantive due process is best known now as the bedrock of many of the most celebrated progressive Supreme Court victories in the last several decades. In addition to Roe, c urrent doctrine holds that rights closely tied to the family — including the right to marry whoever you choose , the right to sexual autonomy , and the right to guide your own children’s upbringing — are among the unenumerated rights protected by the 14th Amendment.

Indeed, when the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization in June, Justice Clarence Thomas argued in a concurring opinion that all of these rights must fall along with the right to an abortion .

But the Court only started to use substantive due process to advance equality and other progressive values fairly recently. There’s also a much darker history underlying doctrines like substantive due process.

Not long after the 14th Amendment was ratified, ex-Confederates, including a disgraced former Supreme Court justice, tried to twist it into a shield protecting white supremacy — and they very nearly succeeded. Several decades later, substantive due process became a tool of plutocrats, and the Court routinely wielded it to strike down pro-labor legislation .

Now, the power to read new constitutional rights into our founding document is held by conservative Republicans like Justice Samuel Alito — the same justice who relied on a centuries-old treatise written by a judge who sentenced two “witches” to death in his opinion overruling Roe . It is a terrible mistake to trust this man with that kind of power.

Abandoning substantive due process, moreover, should not mean sacrificing hard-fought victories for reproductive choice or marriage equality. A sounder strategy is to root these rights in constitutional provisions that offer more specific protections. The Constitution’s guarantee that no one may be denied “ the equal protection of the laws ,” for example, is capacious enough to protect both.

It’s time, in other words, to put substantive due process to bed.

The right to an abortion can exist without an unenumerated “right to privacy”

The Constitution is clearly supposed to protect some rights that aren’t mentioned within it — this is apparent from the Ninth Amendment , which provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

But the Constitution’s text also provides few clues about what these unenumerated rights might be. And judges have struggled for more than a century to come up with a coherent theory of which such rights are protected by the Constitution. American judges haven’t even settled on a persuasive theory about which provision of the Constitution permits them to find unenumerated rights to be implicit in the document.

One way to square this circle is to allow judges — and ultimately the Supreme Court — to determine which unenumerated rights should enjoy constitutional protection. That’s a fine solution if you are comfortable giving this power to whoever sits on the Court, including the specific justices who currently do.

But if you are concerned that Alito and his fellow conservative justices do not have your best interests at heart, then it makes more sense to limit the Court’s power — and that means that our rights must be grounded in constitutional text that places some limits on judicial discretion.

The right to reproductive freedom — including the right to abortion — should be found within the Constitution’s guarantee that no one shall be denied “ the equal protection of the laws .”

As the late Justice Ruth Bader Ginsburg wrote shortly before she joined the Supreme Court, the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life ” hinges upon their “reproductive autonomy.” Gender equality, at least at a systemic level, is not possible in a society where women’s bodies can be seized by the state for nine months at a time.

Roe , however, said surprisingly little about equality, instead claiming that the right to an abortion is implicit in a right to privacy, which is itself implicit in the due process clause of the Constitution.

The question of whether to root abortion rights in gender equality or in a broader right to privacy may seem academic, but the stakes are high. The judiciary’s power to guarantee equal protection is potent but limited. It merely allows judges to equalize rights, providing to a disadvantaged group what the government has already provided to a more advantaged group. In extreme cases, equal protection may also invalidate policies, like the “inherently unequal” segregated schools rejected by Brown v. Board of Education , that systemically relegate a disadvantaged group to an inferior position in society.

Substantive due process and similar doctrines, by contrast, permit the courts to find any right they choose within the Constitution, including “rights” that do serious harm to already disadvantaged groups. As Justice Hugo Black, a liberal Franklin Roosevelt appointee, wrote in 1970, the methods his Court uses to find unenumerated rights within the Constitution are “ an arrogation of unlimited authority by the judiciary .”

And much of the history of substantive due process — and the Supreme Court’s use of it — backs Black up.

The battle lines on unenumerated rights were drawn very soon after the Civil War

The idea that important political rights flow from a provision of the Constitution that only guarantees “due process” is quite odd. And it’s especially odd because the 14th Amendment also states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States .” This language provides a much stronger hook to hang substantive rights upon than the due process clause.

The story of why this privileges or immunities clause plays almost no role in modern constitutional law, however, is instructive. It is a story about how easily bad actors can manipulate vague constitutional language that guarantees undefined rights.

And it starts with John Archibald Campbell , one of the great villains of the Reconstruction Era. A former Supreme Court justice and West Point classmate of Robert E. Lee and Jefferson Davis, Campbell quit the Court at the beginning of the Civil War and eventually become the Confederacy’s assistant secretary of war. After the war, he lived in New Orleans, where he complained in an 1871 letter to his daughter that Louisiana’s Reconstruction government put “Africans in place all about us.”

Campbell read the 14th Amendment and saw an opportunity to neutralize laws enacted by Black legislators. In one case, he argued that a law requiring racially integrated theater seating was unconstitutional because the right to run a segregated business was one of the unnamed “privileges or immunities” protected by the new amendment.

The apotheosis of Campbell’s racist litigation strategy, however, was the Slaughter-House Cases (1873), which split the justices 5-4 between two wildly divergent theories of unenumerated rights, both of which would remain relevant for decades.

Around the time of the Civil War, New Orleans was the unhealthiest city in the nation. One in 12 residents died every year, often from outbreaks of cholera or yellow fever . One of the most significant contributors to this public health crisis was the city’s slaughterhouses, whose waste littered the streets and polluted with rotting offal the Mississippi River that supplied New Orleans’s drinking water.

To deal with this problem, the state’s Reconstruction legislature shut down all of New Orleans’s slaughterhouses and replaced them with a single grand slaughterhouse that would be open to all butchers — and that would sit downriver of the intake pipes that supplied the city with water.

Campbell objected to this law largely because the legislature that enacted it included 35 Black lawmakers. But he primarily adopted proto-libertarian rhetoric in order to challenge the law in court. Claiming he stood for “ Freedom. Free action, free enterprise [and] free competition ,” Campbell told the Supreme Court that the Reconstruction legislature’s slaughterhouse law must fall.

A majority of the Court saw through Campbell’s effort to achieve racist ends by laissez-faire means, and upheld the slaughterhouse law. The purpose of the 14th Amendment, Justice Samuel Miller wrote for the majority , is to ensure “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” It wasn’t to impose small-government conservatism on the states at the very moment when Black Americans first began to exercise legislative power.

But while Miller’s decision was a victory for public health — and at least a temporary defeat for Campbell’s white supremacist project — it achieved this outcome by reading the privileges or immunities clause so narrowly as to render it virtually meaningless.

Though Miller did concede that the 14th Amendment protected some very limited rights, such as the right “to come to the seat of government to assert any claim he may have upon that government” or the right to “use the navigable waters of the United States,” the thrust of his opinion was that judges should be very reluctant to find rights within the 14th Amendment, lest the courts be transformed into “ a perpetual censor upon all legislation of the States .”

In effect, Slaughter-House neutralized much of the 14th Amendment. Miller essentially decided it was better to eliminate the possibility that the privileges or immunities clause would be used for good, than to risk allowing someone like Campbell to use it for evil. As Justice Stephen Field complained in dissent, the Court’s decision transformed the privileges or immunities clause into “vain and idle enactment, which accomplished nothing.”

Field’s vision for the 14th Amendment, however, was as inconsistent with its antiracist purpose as Campbell’s. If Campbell embraced a kind of proto-libertarianism as a cynical ploy to undermine Black lawmakers, Field did so earnestly and enthusiastically. He believed that the Constitution provides expansive, unenumerated rights to capital. And his vision would eventually prevail during the first third of the 20th century.

Substantive due process as a tool of plutocrats

Field could be the patron saint of modern-day figures like Paul Ryan and Neil Gorsuch , who seek to shrink the government until it can be drowned in a bathtub. After Congress enacted a 2 percent income tax that applied only to the wealthiest one-thousandth of Americans, Field wrote an apocalyptic opinion claiming that “the present assault upon capital is but the beginning,” and that it would lead to a “war of the poor against the rich.”

His dissent in Slaughter-House , meanwhile, foreshadowed an age when the Supreme Court would routinely strike down pro-labor legislation on the dubious theory that workers have a right to enter into oppressive labor contracts. Quoting from the economic philosopher Adam Smith, Field wrote that preventing a poor man “from employing this strength and dexterity in what manner he thinks proper” is a “manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.”

This theory of liberty, and particularly the idea that workers and employers both benefit from a system where workers may enter into oppressive labor contracts, won majority support on the Supreme Court shortly after Field’s death in 1899.

The case that most exemplified this era was Lochner v. New York (1905). Today, Lochner is widely viewed as one of the worst decisions in the Court’s history — even Alito denounced it as “discredited” in his Dobbs opinion overruling Roe . Lochner struck down a New York law providing that bakery workers, who were typically paid by the day or week and thus gained nothing from longer hours, would work a maximum 10-hour work day and a 60-hour work week.

Lochner claimed that the law “interferes with the right of contract between the employer and employees,” embracing the laissez-faire approach to labor policy that Field advocated in Slaughter-House.

The Court eventually abandoned Lochner, and its so-called “right to contract,” in 1937. But Lochner was still one of the most consequential decisions of its time. Among other things, the Court relied on Lochner ’s so-called “right to contract” to strike down laws protecting the right to unionize and laws providing for a minimum wage .

By the early 20th century, two distinct concepts of unenumerated rights had gained purchase on the Supreme Court. One, which was first articulated by Field and later embraced by a majority of the justices in Lochner , saw the Court as a bulwark against too-aggressive legislatures. Under this theory, the Court had at least some duty to step in when lawmakers enacted policies that offended not only the text of the Constitution, but also the justices’ personal sense of how a capitalist society should function.

The other approach, which resembled Justice Miller’s position in Slaughter-House , called for judges to defer to lawmakers’ policy decisions. In a now-celebrated dissent, Justice Oliver Wendell Holmes articulated this approach: “A Constitution is not intended to embody a particular economic theory , whether of paternalism and the organic relation of the citizen to the state or of  laissez faire .”

Or, as Holmes put it in a more colorful moment, “ if my fellow citizens want to go to hell, I will help them .” Under this approach, it simply was not the job of judges to find new rights in the Constitution that could thwart the actions of democratically elected lawmakers.

Two more aspects of the Court’s Lochner -era jurisprudence are worth noting. One is that Lochner and its progeny cited the due process clause, not the privileges or immunities clause, as the source of the right to contract. This shift allowed the Court to recognize unenumerated rights without having to explicitly overrule Slaughter-House — even though that meant tying substantive rights to a provision that speaks only of “process.”

The other is that, while Lochner and similarly plutocratic decisions loom large over this era, there was another line of early 20th-century substantive due process cases involving the rights of parents. And these decisions would eventually blossom into cases like Roe v. Wade .

The right to family autonomy

In 1919, Nebraska forbade school teachers from teaching “ any subject to any person in any language than the English language ” before the student passed the eighth grade. It was a transparently nativist law, enacted, in the words of Nebraska’s highest court, because “the Legislature had seen the baneful effects of permitting foreigners , who had taken residence in this country, to rear and educate their children in the language of their native land.”

Three years later , Oregon required most parents to send their kids to public and not parochial schools. This law was almost certainly motivated by anti-Catholic sentiment.

The Court struck both laws down in a pair of substantive due process decisions, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), both of which emphasized that parents have a right — though not an unlimited one — to direct the upbringing of their children.

As the Court ruled in Meyer, individuals have a right “to marry, establish a home and bring up children.” A parent has a “natural duty” to “give his children education suitable to their station in life.” And that duty brings with it a right to employ a teacher “to instruct their children” in subjects they wish those children to learn.

Beginning in 1937, when a majority of the Supreme Court agreed to scrap Lochner and stop sabotaging much of President Roosevelt’s New Deal, the Court began a purge of Lochner- like decisions that thwarted progressive economic regulation. Indeed, the Lochner decision was so offensive to liberals that many left-leaning judges and justices formed an identity around opposing it. As Justice Black said in 1967, the entire reason “why I came on the Court” was because “I was  against using due process to force the views of judges on the country .”

But Meyer and Pierce, which did not threaten progressive economic programs such as the New Deal, survived this purge — despite Black’s belief that any decision reading unenumerated rights into the due process clause was illegitimate. And eventually a majority of the justices decided once again to drink from the forbidden chalice of substantive due process.

Justice William Douglas’s opinion in Griswold v. Connecticut (1965), which built upon Meyer and Pierce to hold that the Constitution permits married couples to use contraception, reads like the work of a sorcerer’s apprentice who knows that he is toying with black magic and ineptly tries to hide it.

“We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment,” Douglas writes in Griswold , as well as a suggestion that “ Lochner v. State of New York should be our guide.” But Douglas insisted that his Court would “decline that invitation.”

Instead, Griswold relied on the truly risible argument that married couples’ right to contraception could be found within the “penumbras” and “emanations” of various constitutional amendments that “create zones of privacy.” This argument, whose only virtue is that it allowed the Court to find an unenumerated right within the Constitution without using the cursed words “substantive due process,” is rarely mentioned in the Court’s later decisions, except maybe to mock it .

Yet, while Griswold fumbled around for a way to protect contraceptive access without adopting the substantive due process framework that animated Lochner , it also shares the Court’s revulsion in Meyer and Pierce at the idea that the government would intrude too deeply into intimate decisions that should be made by families. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglas asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

By the time Roe was handed down eight years later, the Court was less coy about the fact that it was relying on substantive due process — Roe situated the right to an abortion in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” More significantly, the Roe opinion explicitly placed various decisions protecting the right to decide when and how to form a family under the umbrella of a “right to privacy.”

This right, according to Roe , included “activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.”

When you read the Court’s unenumerated rights cases in conjunction (or, at least, the cases that do not rest on the discredited reasoning in Lochner ), a very clear and consistent ideology emerges. Every American has a right to marry a person of their choosing (1967’s Loving v. Virginia , 2015’s Obergefell v. Hodges ); to form and dissolve intimate bonds with whomever they choose ( Lawrence v. Texas in 2003); to have, or not to have, children at a time of their choosing ( Griswold , 1972’s Eisenstadt v. Baird , Roe ); and to raise those children as they desire, subject to laws prohibiting abuse, truancy, and the like ( Meyer , Pierce ).

Under the pre- Dobbs understanding of substantive due process, there must be firm safeguards against the government interfering too much in these deeply personal decisions. And yet, if you find this vision of family autonomy compelling — and I personally find it quite compelling — I urge you to think for a moment about what the current Court, with its 6-3 Republican supermajority, might do with the power to wall off certain family-centered decisions from government policymakers.

What does substantive due process really accomplish?

The question that looms over every single one of the Court’s unenumerated rights decisions is whether we can trust an unelected Supreme Court to decide which rights are protected by the Constitution.

Imagine what sort of “rights” John Archibald Campbell might have found within the 14th Amendment’s vague language if he’d remained on the Court rather than committing treason in defense of slavery. Imagine what Stephen Field might have done if he’d had the votes to impose his laissez-faire vision on the country during his lifetime. Imagine, for that matter, what someone like Samuel Alito might do now that he has the power to invent new constitutional “rights.”

Think, for example, of the many efforts by social conservatives to remove books they disagree with from public school curriculums and libraries . Or similar efforts to force transgender students to use bathrooms that do not align with their gender identity.

Historically, cases like Meyer and Pierce have not been understood to allow conservative parents to impose their will on public school curriculums and policies. But someone like Alito could certainly read them that way. If parents have a right to decide their children’s’ upbringing, what prevents a socially conservative Court from holding that they have a right to send their kids to a public school that doesn’t have trans-inclusive bathrooms?

Leading anti-LGBTQ groups have already spent years thinking about how to use substantive due process to achieve their agenda, sometimes even embracing rhetoric lifted straight out of Griswold or Roe .

The lesson of Lochner is that the power to make “rights” can be used in terrible ways. And it can be used to enhance the might of the already-too-powerful.

But what then of rights, such as marriage equality or the right to sexual autonomy, which current case law finds within the Constitution’s due process clause? The short answer is that these rights should be found elsewhere in the Constitution.

The Court’s early substantive due process decisions — including Lochner , Meyer , and Pierce — were the product of a very different era when the text of the Constitution was often treated as an afterthought. As Georgetown law professor Victoria Nourse writes, “for over fifty years, from 1880 until 1937, American constitutional jurisprudence was neither particularly textual nor particularly focused on original intent .” Judges routinely decided constitutional cases based on common law principles derived only from other judicial decisions, or from ill-defined concepts such as the “police power,” which play a vastly diminished role in modern constitutional law.

Many of the leading lawyers, judges, and legal scholars of that era were quite open about their belief that constitutional law exists separately from the Constitution’s text. As Christopher Tiedeman, an enormously influential legal scholar whose work was quoted with approval by hundreds of judicial decisions around the turn of the 20th century, wrote in a 1900 treatise , “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority.” 

To defeat this majority, Tiedeman urged judges to “lay their interdict upon all legislative acts” that violate a narrow vision of government power, and do so “ even though these acts do not violate any specific or special provision of the Constitution .”

One consequence of this atextualist era in American constitutional law is that judges often relied on vague doctrines like substantive due process to reach outcomes that could have been achieved by relying on a right that is explicitly protected by the Constitution. If a case like Meyer were to arise today, for example, a modern court would undoubtedly find that the right to teach a foreign language is protected by the First Amendment’s free speech clause.

It also helps that, led largely by Justice Black, the Court spent much of the middle of the 20th century holding that states must comply with nearly all of the Bill of Rights , slowly chipping away at an 1833 decision saying that the Bill of Rights applies only to the federal government.

That means that almost all the rights currently protected by substantive due process can be found elsewhere in the Constitution. The anti-Catholic law struck down in Pierce violated the First Amendment’s command that everyone can freely exercise their religion . Laws that deny equal marriage rights to same-sex couples, or that criminalize gay sex, violate the Constitution’s command that no one may be denied “ the equal protection of the laws ” (unless, of course, a state is also willing to prohibit opposite-sex marriage and straight sex).

The right to reproductive autonomy — including the right to abortion — can also be found within this equal protection clause. Recall Justice Ginsburg’s argument that the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life ” hinges upon their “reproductive autonomy.”

I want to be clear that shifting individual rights jurisprudence away from substantive due process, and toward provisions that explicitly protect more carefully enumerated rights, is not a panacea against partisan or ideological judging. Explicit constitutional rights can be interpreted in ways that undermine democracy and lift up the most powerful — hence the Court’s decision in Citizens United v. FEC (2010) that the Constitution’s free speech clause protects the right of corporations to spend unlimited money to influence elections.

But constitutional provisions like the free speech, free exercise, and equal protection clauses are, at least, bounded. They permit judges to halt government censorship, attacks on religion, and efforts to foster inequality. They don’t permit judges to invent literally any right, as substantive due process does. The only real limits on substantive due process are the limits the judiciary imposes on itself.

I also acknowledge that, in arguing that it is time to let the judiciary’s unchecked power to recognize unenumerated rights fall by the wayside, I too am making a somewhat atextualist argument. The Ninth Amendment and privileges or immunities clause are still there, tempting judges to read into them whatever they choose.

But if you disagree with my argument that judges should not use such an extraordinarily vague provision to decide what our rights will be, I want to leave you with a question: How much do you trust Samuel Alito with that power?

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It's been nearly two years since the Supreme Court overturned Roe v. Wade and eliminated the federal right to abortion. Shefali Luthra, a health reporter at The 19th News, spoke to a variety of Americans about how their lives have been upended by the court's decision for her book, "Undue Burden: Life and Death Decisions in Post-Roe America.” She joined Laura Barrón-López to discuss.

Read the Full Transcript

Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

Laura Barron-Lopez:

It's been nearly two years since the Supreme Court overturned Roe vs. Wade and eliminated the federal right to abortion. The reversal marks the start of a new era in the U.S. as some states rush to prohibit abortion. But the new laws didn't just affect those states that implemented them.

Shefali Luthra is a health reporter at the 19th News. She has spent the last two years traveling the country speaking to people from very different backgrounds, about how their lives have been upended by the court's decision. Her book "Undue Burden, Life and Death Decisions in Post-Roe America" is out on Tuesday.

Shefali thanks for being here.

Shefali Luthra, 19th News: Thanks so much for having me.

Many of the abortion stories highlighted since Roe fell have been some of the scariest, ones about people who would die if they didn't get an abortion and you say in this book that it's your attempt to correct that narrative, that people get abortions for all kinds of different reasons, and that those stories equally deserve to be told, what are some of those stories in the states that have either banned or severely restricted abortion?

Shefali Luthra:

The most common reason people get abortions is simply they can't afford to have another kid. Very often people who get abortions are already parents. They know intimately how much it costs, the emotional, the physical, all of the energy it takes to raise a child. They are often in their 20s. They are often women of color. It is women of all ages, people of all gender identities, trans people as well. And they have all sorts of reasons for not wanting to be pregnant.

You traveled the country for years before Roe was overturned. And since it was overturned, how has it changed for health care providers in states where the procedure is still legal.

Even in states where abortion is legal, there is really intense fear and pressure and burnout on the physicians who are caring, not only for people in their own state, but for the people who have traveled, sometimes hundreds of miles to get there.

I can think of doctors I've met in Florida and in Kansas who are just overwhelmed because they are caring for patients sometimes going up until midnight, because they know that if people don't get an abortion in their clinic today, they will never have the opportunity.

It's really a tremendous burden placed upon these providers because they come home, carrying their patients fears their patients groups and their own stress about what they're doing the physical burden of traveling, the emotional knowledge that what you are doing, what you have been taught is safe medical care, is in so many places no longer allowed.

You write about so many of those patients in the book, one of those people is Angela, a young Latina mother in her 20s living in Texas. She already had one kid and she was concerned about the fact that that could drive her into even further debt. She had to travel to New Mexico to receive two abortion medications. And again, she didn't know how she and her boyfriend were going to pay for bills.

I bring that up because that story sounds a lot like the story of a young transgender girl that I interviewed last year. You write that these two issues, abortion access, and gender affirming care for transgender people are connected. Why?

If we look at the Venn diagram of states that have banned abortion, and of states that have restricted access to gender affirming care, especially for minors, it's largely a circle. They are outlining healthcare that is life affirming, and in some cases, life-saving, and they're doing so often in the face of medical guidance.

What we also know is that many health care providers who provide abortion also provide gender affirming care. They are under dual attack by lawmakers unable to provide what they believe and know to be the best medical care because of the political reality that many people view gender based healthcare as needing to be regulated or outlawed.

Patients living in states that have restrictive laws, not where abortion is fully banned. But severe restrictions are worried about missing that window based on their state's law. So how have they been affected and all of this?

There's a young man in the book named Jasper who lives in Florida and gets an abortion. And when he got an abortion, it was legal up to 15 weeks in Florida. He found out very close to that deadline. He had about one week to make his appointment to go through Florida's two mandated state visits, and to decide that he wanted an abortion to begin with.

This is a really personal decision that he wanted to spend time with. And instead he had to rush through it. He didn't want to tell his family because they didn't agree with abortion. So he had to sit with this secret for a week, wondering for months afterward if this was actually what he wanted to do but knowing that if he didn't decide quickly, he wouldn't have had a choice.

Speaking of Florida, it was previously a state where a number of people went to receive abortions, but Republicans there implemented a six week man earlier this month, what does it mean for Floridians as well as people all across the south?

That ban is one of the most important bands who have taken effect since Roe v. Wade was overturned. Florida was the premier access point for abortion in the South. There were more than 84,000 abortions in the state last year, a large share from people from neighboring states who had nowhere closer to go.

Even though Republicans in the state said they wanted to settle at a 15-week compromise. That wasn't the reality. And it also shows us that we are living in a country where roughly half of the nation does not live anywhere near an abortion and has to travel as far say from Miami to Virginia or North Carolina or even New York to get healthcare.

Polls often say that abortion is maybe not as salient as it was immediately after the fall of Roe. But as you travel across the country, do you hear fears about a national abortion ban amongst the people that you speak to?

The people I interviewed did not think that much about abortion as a political issue until it affected them. And now that it has, it is something that they think about constantly. They feel as if they are not equal citizens in this country. They feel as if they are treated as less because of their gender. This absolutely will shape how they vote.

I think the question is, as you pointed out, whether that same prioritization and level of concern will extend to people who don't realize what they have, which is that this really could affect any one of us.

Shefali Luthra of the 19th News, thank you for your reporting and this fascinating book.

Thank you so much for having me.

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Laura Barrón-López is the White House Correspondent for the PBS NewsHour, where she covers the Biden administration for the nightly news broadcast. She is also a CNN political analyst.

Satvi Sunkara is a production assistant for PBS News Weekend.

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clock This article was published more than  1 year ago

Opinion The Supreme Court’s radical abortion ruling begins a dangerous new era

In a reckless fit of judicial activism that will redound for generations, the Supreme Court on Friday overturned Roe v. Wade , the half-century-old precedent that declared that Americans have a constitutional right to obtain abortions. It is hard to exaggerate how wrongheaded, radical and dangerous this ruling is, and not just for anyone who could ever become pregnant. A 5-to-4 majority has thrust the country and the court itself into a perilous new era, one in which the court is no longer a defender of key personal rights.

Throughout their ruling, Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas played down the existential significance of pregnancy for women’s lives. “Attempts to justify abortion through appeals to a broader right to autonomy,” wrote Justice Alito, “could license fundamental rights to illicit drug use, prostitution, and the like.” In fact, pregnancy is nothing like those things. It is an intimate decision with few, if any, parallels — one that a constitutional order that prizes personal dignity and autonomy requires individuals be able to make themselves.

In part because Americans rely on Supreme Court rulings to make decisions and plan for the future, overturning a precedent of Roe ’s vintage and significance should be done only in exceptional circumstances — meaning, if the decision was egregiously wrong. This was obviously not the case with Roe , which the court had previously reviewed and upheld and which found its basis in the simple concept that a government committed to respecting fundamental liberties must place a high premium on individuals’ prerogative to make the most intimate and personal choices. Nor was Roe outside the mainstream of American values, with polls showing broad popular acceptance of the ruling before the justices eviscerated it.

Jennifer Rubin: The Supreme Court eviscerates abortion rights and its own legitimacy

Even if the justices did not find all of Roe ’s reasoning compelling, Chief Justice John G. Roberts Jr. emphasized that the court did not need to go as far as it did. The case before the court involved Mississippi’s ban on abortions after 15 weeks. The chief justice would have upheld the ban because it still left women “a reasonable opportunity to choose” whether to proceed with their pregnancies. Such a holding would have modified, not obliterated, Roe ’s longtime guarantee that pregnant people must be allowed to exercise some degree of free judgment on whether they will carry a child to term. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis ,” Justice Roberts wrote. Five justices ignored his pleas, overturning Roe not because the case in front of them demanded it — but because they wanted to.

The first victims will be Americans who are pregnant or who might become pregnant. Abortion will become automatically illegal in 13 states. State attorneys general in Alabama, Louisiana and Oklahoma announced shortly after the ruling that their states’ abortion bans are now in effect. South Dakota Gov. Kristi L. Noem (R) announced a special session of the state legislature.

A wave of further restrictions is sure to come. Some people seeking abortions could cross state lines. But poor people often have no such option, and conservative state lawmakers are devising ways to curb the practice for all their residents. Illegal and potentially dangerous abortions could proliferate. States might also ban other reproductive practices, such as in vitro fertilization or the use of intrauterine devices.

Moreover, as Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor noted in a dissent, the court’s ruling enables Congress to ban abortion across the country, even in cases of rape or incest. This will become a vicious internecine legislative war that, given the right political circumstances, could result in the wholesale abridgment of rights that should be considered basic. This prospect contradicts the majority’s insistence that it is merely returning the abortion question to the states.

The court’s audacious attack on abortion rights raises questions about the future of other legal guarantees, including same-sex marriage, access to contraception and even interracial marriage. These guarantees are based on concepts of individual rights of the sort the court majority has now disregarded.

In practice, the court is unlikely to roll back all of them; Justice Kavanaugh emphasized in a concurrence that this ruling does not disturb other, related precedents. But the majority failed to explain credibly why their reasoning could not be applied to threaten these landmark achievements, noting simply that they do not involve moral questions about “potential life.” True, but some states claimed to have profound moral interests in prohibiting same-sex marriage — interests that the justices who dissented from recent decisions bolstering the rights of LGBTQ people, some of whom made up Friday’s anti- Roe majority, would no doubt find compelling. The court majority offered Americans little more than a flimsy promise that it will leave these rights intact.

Marc A. Thiessen: For the fall of Roe v. Wade, thank Donald Trump

The last victim is the court itself. In a stroke, a heedless majority has done more to undermine the court’s credibility than in any other action it has taken in modern times. Fundamental to its place in American society is the notion that the justices are more than just politicians in robes — that they are committed to conscientiously interpreting the law, with regard to text, tradition, history, logic, judicial restraint and common practice, rather than imposing their political or ideological preferences as quickly and as far as they can. In much of the country, this image will now be shattered. So, too, will be Americans’ expectations that they can count on any court ruling to remain the durable law of the land. We are entering a new era of distrust and volatility in the legal system in a country that needs stability in its governmental institutions, rather than more venom and tumult.

Friday’s ruling was another reminder, for a country that needs no more, that Americans cannot take for granted the freedoms they enjoy. Their decisions, particularly how and whether they vote, can have direct, dramatic and negative consequences for their lives. A decades-long conservative crusade to nullify federal abortion rights has now succeeded, because Senate Republicans underhandedly stacked the court with justices who have proved to be disastrously intemperate. This tragic moment should wake Americans to reality: They must defend their rights, or they are liable to lose them.

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Broad Public Support for Legal Abortion Persists 2 Years After Dobbs

By more than 2 to 1, americans say medication abortion should be legal, table of contents.

• Other abortion attitudes
• Overall attitudes about abortion
• Americans’ views on medication abortion in their states
• How statements about abortion resonate with Americans
• Acknowledgments
• The American Trends Panel survey methodology

Pew Research Center conducted this study to understand Americans’ views on the legality of abortion, as well as their perceptions of abortion access. For this analysis, we surveyed 8,709 adults from April 8 to 14, 2024. Everyone who took part in this survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology .

Here are the questions used for the report and its methodology .

Nearly two years after the Supreme Court overturned the 1973 Roe v. Wade decision guaranteeing a national right to abortion, a majority of Americans continue to express support for abortion access.

About six-in-ten (63%) say abortion should be legal in all or most cases. This share has grown 4 percentage points since 2021 – the year prior to the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe.

The new Pew Research Center survey, conducted April 8-14, 2024, among 8,709 adults, surfaces ongoing – and often partisan – divides over abortion attitudes:

• Democrats and Democratic-leaning independents (85%) overwhelmingly say abortion should be legal in all or most cases, with near unanimous support among liberal Democrats.
• By comparison, Republicans and Republican leaners (41%) are far less likely to say abortion should be legal in all or most cases. However, two-thirds of moderate and liberal Republicans still say it should be.

Since before Roe was overturned, both parties have seen a modest uptick in the share who say abortion should be legal.

As in the past, relatively few Americans (25%) say abortion should be legal in all cases, while even fewer (8%) say it should be illegal in all cases. About two-thirds of Americans do not take an absolutist view: 38% say it should be legal in most cases, and 28% say it should be illegal in most cases.

Related: Americans overwhelmingly say access to IVF is a good thing

Women’s abortion decisions

A narrow majority of Americans (54%) say the statement “the decision about whether to have an abortion should belong solely to the pregnant woman” describes their views extremely or very well. Another 19% say it describes their views somewhat well, and 26% say it does not describe their views well.

Views on an embryo’s rights

About a third of Americans (35%) say the statement “human life begins at conception, so an embryo is a person with rights” describes their views extremely or very well, while 45% say it does not describe their views well.

But many Americans are cross-pressured in their views: 32% of Americans say both statements about women’s decisions and embryos’ rights describe their views at least somewhat well.

Abortion access

About six-in-ten Americans in both parties say getting an abortion in the area where they live would be at least somewhat easy, compared with four-in-ten or fewer who say it would be difficult.

However, U.S. adults are divided over whether getting an abortion should be easier or harder:

• 31% say it should be easier for someone to get an abortion in their area, while 25% say it should be harder. Four-in-ten say the ease of access should be about what it is now.
• 48% of Democrats say that obtaining an abortion should be easier than it is now, while just 15% of Republicans say this. Instead, 40% of Republicans say it should be harder (just 11% of Democrats say this).

As was the case last year, views about abortion access vary widely between those who live in states where abortion is legal and those who live in states where it is not allowed.

For instance, 20% of adults in states where abortion is legal say it would be difficult to get an abortion where they live, but this share rises to 71% among adults in states where abortion is prohibited.

Medication abortion

Americans say medication abortion should be legal rather than illegal by a margin of more than two-to-one (54% vs. 20%). A quarter say they are not sure.

Like opinions on the legality of abortion overall, partisans differ greatly in their views of medication abortion:

• Republicans are closely split but are slightly more likely to say it should be legal (37%) than illegal (32%). Another 30% aren’t sure.
• Democrats (73%) overwhelmingly say medication abortion should be legal. Just 8% say it should be illegal, while 19% are not sure.

Across most other demographic groups, Americans are generally more supportive than not of medication abortion.

Across demographic groups, support for abortion access has changed little since this time last year.

Today, roughly six-in-ten (63%) say abortion should be legal in all (25%) or most (38%) cases. And 36% say it should be illegal in all (8%) or most (28%) cases.

While differences are only modest by gender, other groups vary more widely in their views.

Race and ethnicity

Support for legal abortion is higher among Black (73%) and Asian (76%) adults compared with White (60%) and Hispanic (59%) adults.

Compared with older Americans, adults under 30 are particularly likely to say abortion should be legal: 76% say this, versus about six-in-ten among other age groups.

Those with higher levels of formal education express greater support for legal abortion than those with lower levels of educational attainment.

About two-thirds of Americans with a bachelor’s degree or more education (68%) say abortion should be legal in all or most cases, compared with six-in-ten among those without a degree.

White evangelical Protestants are about three times as likely to say abortion should be illegal (73%) as they are to say it should be legal (25%).

By contrast, majorities of White nonevangelical Protestants (64%), Black Protestants (71%) and Catholics (59%) say abortion should be legal. And religiously unaffiliated Americans are especially likely to say abortion should be legal (86% say this).

Partisanship and ideology

Democrats (85%) are about twice as likely as Republicans (41%) to say abortion should be legal in all or most cases.

But while more conservative Republicans say abortion should be illegal (76%) than legal (27%), the reverse is true for moderate and liberal Republicans (67% say legal, 31% say illegal).

By comparison, a clear majority of conservative and moderate Democrats (76%) say abortion should be legal, with liberal Democrats (96%) overwhelmingly saying this.

Views of abortion access by state

About six-in-ten Americans (58%) say it would be easy for someone to get an abortion in the area where they live, while 39% say it would be difficult.

This marks a slight shift since last year, when 54% said obtaining an abortion would be easy. But Americans are still less likely than before the Dobbs decision to say obtaining an abortion would be easy.

Still, Americans’ views vary widely depending on whether they live in a state that has banned or restricted abortion.

In states that prohibit abortion, Americans are about three times as likely to say it would be difficult to obtain an abortion where they live as they are to say it would be easy (71% vs. 25%). The share saying it would be difficult has risen 19 points since 2019.

In states where abortion is restricted or subject to legal challenges, 51% say it would be difficult to get an abortion where they live. This is similar to the share who said so last year (55%), but higher than the share who said this before the Dobbs decision (38%).

By comparison, just 20% of adults in states where abortion is legal say it would be difficult to get one. This is little changed over the past five years.

Americans’ attitudes about whether it should be easier or harder to get an abortion in the area where they live also varies by geography.

Overall, a decreasing share of Americans say it should be harder to obtain an abortion: 33% said this in 2019, compared with 25% today.

This is particularly true of those in states where abortion is now prohibited or restricted.

In both types of states, the shares of Americans saying it should be easier to obtain an abortion have risen 12 points since before Roe was overturned, as the shares saying it should be harder have gradually declined.

By comparison, changes in views among those living in states where abortion is legal have been more modest.

While Americans overall are more supportive than not of medication abortion (54% say it should be legal, 20% say illegal), there are modest differences in support across groups:

• Younger Americans are somewhat more likely to say medication abortion should be legal than older Americans. While 59% of adults ages 18 to 49 say it should be legal, 48% of those 50 and older say the same.
• Asian adults (66%) are particularly likely to say medication abortion should be legal compared with White (55%), Black (51%) and Hispanic (47%) adults.
• White evangelical Protestants oppose medication abortion by about two-to-one (45% vs. 23%), with White nonevangelicals, Black Protestants, Catholics and religiously unaffiliated adults all being more likely than not to say medication abortion should be legal.
• Republicans are closely divided over medication abortion: 37% say it should be legal while 32% say it should be illegal. But similar to views on abortion access overall, conservative Republicans are more opposed (43% illegal, 27% legal), while moderate and liberals are more supportive (55% legal, 14% illegal).

Just over half of Americans (54%) say “the decision about whether to have an abortion should belong solely to the pregnant woman” describes their views extremely or very well, compared with 19% who say somewhat well and 26% who say not too or not at all well.

Democrats (76%) overwhelmingly say this statement describes their views extremely or very well, with just 8% saying it does not describe their views well.

Republicans are more divided: 44% say it does not describe their views well while 33% say it describes them extremely or very well. Another 22% say it describes them somewhat well.

Fewer Americans (35%) say the statement “human life begins at conception, so an embryo is a person with rights” describes their views extremely or very well. Another 19% say it describes their views somewhat well while 45% say it describes them not too or not at all well.

(The survey asks separately whether “a fetus is a person with rights.” The results are roughly similar: 37% say that statement describes their views extremely or very well.)

Republicans are about three times as likely as Democrats to say “an embryo is a person with rights” describes their views extremely or very well (53% vs. 18%). In turn, Democrats (66%) are far more likely than Republicans (25%) to say it describes their views not too or not at all well.

Some Americans are cross-pressured about abortion

When results on the two statements are combined, 41% of Americans say the statement about a pregnant woman’s right to choose describes their views at least somewhat well , but not the statement about an embryo being a person with rights. About two-in-ten (21%) say the reverse.

But for nearly a third of U.S. adults (32%), both statements describe their views at least somewhat well.

Just 4% of Americans say neither statement describes their views well.

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Long Beach Post: State and city officials gather in Long Beach to rally for abortion rights

By Laura Anaya-Morga

State and city officials were joined by a group of about a dozen activists and spectators Friday morning to advocate for the reproductive rights of all people and denounce the United States Supreme Court’s leaked draft opinion overturning Roe v. Wade.

Since the draft was leaked Monday, the community has shown up to express their disapproval of the potential ruling with  gatherings and protests across the city .

“We know that the leaked draft has invoked feelings of dread and despair for so many across our state,” said State Sen. Lena Gonzalez (D-Long Beach). “Since Roe v. Wade was decided 50 years ago, we knew this day would come.”

Last month, Gonzalez helped pass the Abortion Accessibility Act to require all state-licensed health care service plans issued after 2022 to cover abortion services without a co-payment, deductible or any type of cost-sharing—essentially eliminating the cost barrier for low or middle-income people seeking reproductive care.

“Each person deserves the right to decide, if, when, and how they grow their family regardless of income and without stigma or shame,” Gonzalez wrote in a press release.

Following the leaked draft opinion, Assembly Speaker Anthony Rendon (D-Lakewood),  State Senate President pro Tempore Toni G. Atkins (D-San Diego) and Gov. Gavin Newsom swiftly announced that they are proposing an amendment to solidify abortion rights in the state constitution.

At the press conference, representatives for various community organizations including California Latinas for Reproductive Justice, Black Women for Wellness and the LGBTQ Center Long Beach expressed their support for the state and city’s efforts.

While the leaked opinion is not yet finalized and does not overturn the right to abortion care yet, the organizations emphasized that it shows the disregard for the reproductive rights of all people, especially BIPOC and low-income individuals.

“These violent laws that attack the reproductive rights of queer and trans families, immigrants, young people and people with disabilities are all connected and they are assaults against our autonomy,” said Laura Jiménez, Executive Director for California Latinas for Reproductive Justice.

Read the article on Long Beach Post here . 

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A Federal Judge Delivers Another Urgent, Scathing Warning About the Supreme Court

It takes a lot of courage for a lower court judge to criticize the Supreme Court, but Judge Carlton Reeves has long felt a responsibility to speak candidly to the public about threats to their civil rights. In an opinion on Monday, he calls for the abolition of qualified immunity—a noxious legal doctrine that insulates violent and corrupt government officials, especially law enforcement, from accountability. He embedded this call to action in a broader critique of the Supreme Court’s selective application of precedent—with a focus on the cavalier reversal of Roe v. Wade —as well as its pernicious distrust of democracy. Reeves’ opinion warns all who wish to listen that a broad array of our constitutional liberties are in serious and imminent jeopardy.

A Barack Obama appointee, Reeves sits on a U.S. District Court in Mississippi. His latest opinion was sparked by facts that he sees all too often and has written about before : the egregious violation of a criminal suspect’s constitutional rights as an innocent person wrongly charged with a crime. It began when detective Jacquelyn Thomas of Jackson, Mississippi, accused Desmond Green of murder. The detective’s only evidence was a statement made by Green’s acquaintance, Samuel Jennings—after Jennings was arrested for burglary and grand larceny, and while he was under the influence of meth. Thomas allegedly encouraged Jennings to select Green’s picture out of a photo lineup after he identified someone else as the killer. Allegedly, she also misled the grand jury to secure an indictment, concealing Jennings’ drug abuse as well as the many inconsistencies and inaccuracies in his statement.

Jennings later recanted, admitting that, in his meth-addled state, he’d provided a bogus tip. A judge finally dismissed the charges. By that point, Green had spent 22 months in jail, serving pretrial detention. The facility was violent. The food was moldy. He slept on the floor. His cell was infested with snakes and vermin.

Green then sued Thomas, accusing her of malicious prosecution in violation of the Constitution . Thomas promptly asserted qualified immunity to defeat the lawsuit. This doctrine protects government officials from liability unless they run afoul of “clearly established” law. In other words, there must be an earlier case on the books with similar, “particularized” facts that explicitly bars the official’s actions. If there is no near-identical precedent that unambiguously prohibits those acts, qualified immunity kicks in, the lawsuit is tossed out, and the case never even reaches a jury.

This shield has allowed a repulsive amount of wrongdoing by police and prosecutors to go totally unpunished. Cops are permitted to brutally beat, murder , steal from , and conspire against innocent people because the rights they violate are, ostensibly, not “clearly established.” Courts regularly apply the doctrine when there is a tiny discrepancy between a previous case and the facts at hand as an excuse to let the officer off scot-free. And over the past few decades, SCOTUS itself has expanded qualified immunity to new extremes . The result, as Reeves wrote, is “a perpetuation of racial inequality”: Black Americans experience more violations of their civil rights than any other class, yet qualified immunity denies them a remedy in even the most appalling circumstances.

Here, though, Reeves refused to let the doctrine devour the Constitution. He concluded that there is sufficient on-point precedent to show that Thomas’ malicious prosecution, if proved, violated Green’s “clearly established” rights. So the case may go to trial. That, however, was not the end of his analysis—because, as he pointed out, the concept of qualified immunity is unlawful, unworkable, and indefensible.

The first problem is that judges made up the doctrine as a special favor to other employees of the government. Congress, as Reeves explained, gave individuals the power to sue state officials in federal court through the Ku Klux Klan Act of 1871, enacted after the Civil War so newly freed Black Americans could sue racist and abusive local police. Congress did not establish anything like “qualified immunity” in the statute. Rather, the Supreme Court invented the doctrine in 1967 , purporting to protect cops who commit illegal arrests in “good faith,” and imposed it unilaterally on the nation. It then crept, kudzu-like , into other areas of law.

“The People never enshrined qualified immunity in the Constitution,” Reeves wrote. “Our representatives in Congress never put it into the statute or voted for it. No President signed it into law. If anything, it represents a kind of ‘trickle-down’ democratic legitimacy.” In recent years, the Supreme Court has not bothered to account for qualified immunity’s origins, but rather maintains it on the basis of respect for precedent: It exists already, so it might as well keep existing.

And here is where Reeves goes for the jugular: The Supreme Court has tossed out far more defensible and entrenched precedent on the basis of far feebler excuses. How can it justify keeping qualified immunity around while recklessly destabilizing vast areas of settled law it doesn’t like?

SCOTUS has suggested that law enforcement officers have come to rely on qualified immunity, creating a “reliance interest” that counsels keeping the doctrine. But when the court overruled Roe in 2022’s Dobbs decision, Reeves wrote, the majority rejected that “kind of vague, ‘generalized assertion about the national psyche.’ ” Instead, Reeves wrote, the justices “thought voters should resolve reliance interests, not judges.” He then repurposed Dobbs ’ most notorious lines : “After all, just like women, law enforcement officers and their unions ‘are not without electoral or political power.’ ” Law enforcement officers, like women, can “affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” If courts can’t protect women’s bodily autonomy, he asked, why should they do the bidding of police unions?

Dobbs , Reeves went on, “also reflects the Supreme Court’s desire to remove itself from the center of a hot-button issue and return it to the electoral process.” Police reform, like abortion, is undoubtedly a “controversy on issues of life and death, where passions run high.” Yet even after Dobbs , SCOTUS “has not yet seen fit to return this contested issue to the democratic process,” Reeves opined. “It is not clear why.” After all, “the current court is certainly not shy about overturning precedent.” And the list of cases on the chopping block “seems to grow every year.” Teachers’ unions and racial minorities have watched the court gut precedent that shielded them for decades. Why should cops get favored treatment? Merely because of SCOTUS’ “policy-based choice” to “privilege government officials over all others.”

Reeves has a complex history with reproductive rights. He was the district court judge who struck down the Mississippi law that the Supreme Court later upheld in Dobbs when overruling Roe . His emphatic opinion famously accused the Mississippi Legislature of misogynistic “gaslighting,” analogizing the state’s defiance of Roe to its earlier defiance of Brown v. Board of Education . It’s evident that, to Reeves, the Supreme Court’s embrace of democracy in Dobbs rings hollow alongside its rejection of democracy in so many other areas, including the Second Amendment. (In a pointed footnote, he called out the court for treating the right to bear arms as a uniquely absolute, unlimited freedom —while greenlighting the erosion of other liberties that it values less.)

The judge folds together these rather scathing observations by reminding us that the Supreme Court’s creation and expansion of qualified immunity is, itself, a rejection of democracy. The Framers, after all, envisioned jury trials as a bulwark of democratic power, a check by “We the People” on government abuse. It was, Reeves wrote, designed to be exercised “one dispute at a time, day after day, rather than on fixed election days.” Unfortunately, an arrogant “judicial supremacy has too-often deprived the people of their proper role” in deciding whether public officials should be liable for their unconstitutional acts. Qualified immunity “reflects a deep distrust of ordinary people” in direct conflict with the Constitution. “In the same way we trust the collective judgment of voters in elections, we must trust the judgment of jurors in deciding cases,” Reeves wrote. They can resolve “tensions and contradictions case by case, as the evidence dictates.” All judges must do “is tell jurors the truth.”

Will the Supreme Court listen? The conservative justices seem disinclined to reevaluate their cynical, selective concerns about precedent and democracy. But with this opinion, Reeves has given the public yet another reason to question these justices’ increasingly dubious wisdom and integrity. Just as importantly, other judges may take note of Monday’s critique and follow Reeves’ suggestion of narrowing qualified immunity wherever possible. They might even join him in calling for its eradication, forcing SCOTUS to either stand by its handiwork or reevaluate it. The judge’s simple suggestion boils down to this: If we’re going to do democracy, let’s actually do democracy—not whatever partisan, half-baked substitute this Supreme Court is trying to pass off to the people.

At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display

An upside-down flag, adopted by Trump supporters contesting the Biden victory, flew over the justice’s front lawn as the Supreme Court was considering an election case.

A photo obtained by The Times shows an inverted flag at the Alito residence on Jan. 17, 2021, three days before the Biden inauguration. Credit...

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By Jodi Kantor

Jodi Kantor, who has been reporting on the Supreme Court, including the behind-the-scenes story of how the justices overturned the right to abortion, welcomes tips at nytimes.com/tips .

• May 16, 2024

After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.

One of the homes flying an inverted flag during that time was the residence of Supreme Court Justice Samuel A. Alito Jr., in Alexandria, Va., according to photographs and interviews with neighbors.

The upside-down flag was aloft on Jan. 17, 2021, the images showed. President Donald J. Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before. Mr. Biden’s inauguration was three days away. Alarmed neighbors snapped photographs, some of which were recently obtained by The New York Times. Word of the flag filtered back to the court, people who worked there said in interviews.

While the flag was up, the court was still contending with whether to hear a 2020 election case, with Justice Alito on the losing end of that decision. In coming weeks, the justices will rule on two climactic cases involving the storming of the Capitol on Jan. 6, including whether Mr. Trump has immunity for his actions. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances for re-election in the upcoming one.

“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.

The mere impression of political opinion can be a problem, the ethics experts said. “It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Amanda Frost, a law professor at the University of Virginia.

This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.

Interviews show that the justice’s wife, Martha-Ann Alito, had been in a dispute with another family on the block over an anti-Trump sign on their lawn, but given the timing and the starkness of the symbol, neighbors interpreted the inverted flag as a political statement by the couple.

The longstanding ethics code for the lower courts, as well as the recent one adopted by the Supreme Court, stresses the need for judges to remain independent and avoid political statements or opinions on matters that could come before them.

“You always want to be proactive about the appearance of impartiality,” Jeremy Fogel, a former federal judge and the director of the Berkeley Judicial Institute, said in an interview. “The best practice would be to make sure that nothing like that is in front of your house.”

The court has also repeatedly warned its own employees against public displays of partisan views, according to guidelines circulated to the staff and reviewed by The Times. Displaying signs or bumper stickers is not permitted, according to the court’s internal rule book and a 2022 memo reiterating the ban on political activity.

Asked if these rules also apply to justices, the court declined to respond.

The exact duration that the flag flew outside the Alito residence is unclear. In an email from Jan. 18, 2021, reviewed by The Times, a neighbor wrote to a relative that the flag had been upside down for several days at that point.

In recent years, the quiet sanctuary of his street, with residents who are Republicans and Democrats, has tensed with conflict, neighbors said. Around the 2020 election , a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews.

Some residents have also bridled at the noise and intrusion brought by protesters, who started showing up outside the Alito residence in 2022 after the Supreme Court overturned the federal right to abortion. Other neighbors have joined the demonstrators, whose intent was “to bring the protest to their personal lives because the decisions affect our personal lives,” said Heather-Ann Irons, who came to the street to protest.

The half-dozen neighbors who saw the flag, or knew of it, requested anonymity because they said they did not want to add to the contentiousness on the block and feared reprisal. Last Saturday, May 11, protesters returned to the street, waving flags of their own (“Don’t Tread on My Uterus”) and using a megaphone to broadcast expletives at Justice Alito, who was in Ohio giving a commencement address . Mrs. Alito appeared in a window, complaining to the Supreme Court security detail outside.

Turning the American flag upside down is a symbol of emergency and distress, first used as a military S.O.S., historians said in interviews. In recent decades, it has increasingly been used as a political protest symbol — a controversial one, because the flag code and military tradition require the paramount symbol of the United States to be treated with respect.

Over the years, upside-down flags have been displayed by both the right and the left as an outcry over a range of issues, including the Vietnam War, gun violence , the Supreme Court’s overturning of the constitutional right to abortion and, in particular, election results. In 2012, Tea Party followers inverted flags at their homes to signal disgust at the re-election of President Barack Obama. Four years later, some liberals advised doing the same after Mr. Trump was elected.

During Mr. Trump’s quest to win, and then subvert, the 2020 election, the gesture took off as never before, becoming “really established as a symbol of the ‘Stop the Steal’ campaign,” according to Alex Newhouse, a researcher at the University of Colorado Boulder.

A flood of social media posts exhorted Trump supporters to flip over their flags or purchase new ones to display upside down.

“If Jan. 6 rolls around and Biden is confirmed by the Electoral College our nation is in distress!!” a poster wrote on Patriots.win, a forum for Trump supporters, garnering over a thousand “up” votes. “If you cannot go to the DC rally then you must do your duty and show your support for our president by flying the flag upside down!!!!”

Local newspapers from Lexington, Ky. , to Sun City, Ariz., to North Jersey wrote about the flags cropping up nearby. A few days before the inauguration, a Senate candidate in Minnesota flew an upside-down flag on his campaign vehicle .

Hanging an inverted flag outside a home was “an explicit signifier that you are part of this community that believes America has been taken and needs to be taken back,” Mr. Newhouse said.

This spring, the justices are already laboring under suspicion by many Americans that whatever decisions they make about the Jan. 6 cases will be partisan. Justice Clarence Thomas has declined to recuse himself despite the direct involvement of his wife, Virginia Thomas, in efforts to overturn the election.

Now, with decisions in the Jan. 6 cases expected in just a few weeks, a similar debate may unfurl about Justice Alito, the ethics experts said. “It really is a question of appearances and the potential impact on public confidence in the court,” Mr. Fogel said. “I think it would be better for the court if he weren’t involved in cases arising from the 2020 election. But I’m pretty certain that he will see that differently.”

If Justice Alito were on another court, Mr. Fogel said, the flag could also trigger some sort of review to determine if there was any misconduct. But because the Supreme Court serves as the arbiter of its own behavior, “you don’t really have anywhere to take it,” he said.

Aric Toler contributed reporting. Julie Tate contributed research.

Jodi Kantor is a Pulitzer Prize-winning investigative reporter and co-author of “She Said,” which recounts how she and Megan Twohey broke the story of sexual abuse allegations against Harvey Weinstein, helping to ignite the #MeToo movement.    Instagram • More about Jodi Kantor

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