Understanding Roe v Wade and why it was overturned

The now-dead landmark ruling enshrined constitutional protections for abortion care

Independent Staff
Tuesday 05 July 2022 12:32 BST
What the US Supreme Court leak means for Roe v Wade and abortion rights in America

On 24 June, the US Supreme Court overturned Roe v Wade, issuing a ruling that upholds a Mississippi law banning most abortions after 15 weeks of pregnancy, and striking down constitutional protections for abortion acre.

The landmark precedent established in the 1973 ruling from Roe affirmed the constitutional right to abortion care.

The Mississippi case, Dobbs v Jackson Women’s Health Organization, marked the first major abortion rights challenge in front of the new conservative-majority court with its three newest justices, all conservatives appointed by former president Donald Trump. The court heard oral arguments in the case on 1 December 2021. A leak of a draft opinion in the case suggested that justices were prepared to overturn Roe.

The Roe ruling effectively nullified state laws that banned the procedure outright and sparked decades of religious and moral conflict over women’s bodies.

The Supreme Court’s decision to overturn both the precedent established by Roe and an affirming ruling in 1992’s Planned Parenthood v Casey effectively will eliminate abortion access across more than half the US and force many pregnant women to carry their pregnancies to term unless they can travel to a handful of states with abortion protections in place.

In 2022, a wave of anti-abortion legislation in Republican-led states, emboldened by the Supreme Court’s forthcoming decision, proposed eliminating abortion access in most cases and criminalising abortion care.

What is Roe v Wade?

The case revolved around Norma McCorvey – known for the purposes of the proceedings as “Jane Roe” – who became pregnant with her third child in Texas in 1969 but was unable to access abortion care after it was banned in her state in all cases but to “save a woman’s life.”

She was supported by lawyers Sarah Weddington and Linda Coffee, who filed a lawsuit on her behalf in federal court against her local district attorneyHenry Wade, alleging that the state’s abortion laws were unconstitutional.

The US District Court for the Northern District of Texas ruled in her favour, which was kicked up to the Supreme Court following an appeal from Texas.

The Supreme Court’s 7-2 decision in Ms McCorvey’s favour was based partly on the 14th Amendment’s “right to privacy” that protects a woman’s right to access abortion.

Ms McCorvey, who was unable to access a legal abortion, gave birth before the case was heard and the baby was put up for adoption.

She said at the time that she did it “on behalf of herself and all other women” in the same situation.

The decision also set a legal precedent that affected more than 30 subsequent Supreme Court cases involving restrictions on access to abortion.

Conservative Christian movements and politically powerful right-wing legal groups have committed for decades to overturning Roe. The most recent addition to the Supreme Court, Justice Amy Coney Barrett, brought the high court’s conservative makeup to six against three liberal-leaning justices. During his term in office, Mr Trump appointed two other conservative judges, Neil Gorsuch and Brett Kavanaugh.

Is Roe v Wade constitutional?

The ruling determines that the US Constitution protects a woman’s right to an abortion without excessive government intervention. A 1992 Supreme Court ruling in Planned Parenthood v Casey upheld the “essential holding” in the Roe ruling and prohibited legal constrictions that constitute an “undue burden” on abortion access.

On 20 January, the high court declined abortion providers’ request to intervene in an ongoing legal challenge to a Texas law banning most abortions at six weeks or pregnancy, before most women know they are pregnant.

Abortion rights advocates hoped that the Supreme Court would direct the case to federal district court, where a previous ruling had blocked the law. Following the court’s decline to intervene in the challenge to the Texas law, which undercuts Roe protections, Republican legislators in states like Oklahoma introduced several restrictive bills that mirror the Texas law or eliminate access entirely.

With the Dobbs decision, the court’s conservative majority deemed Roe unconstitutional, ending 50 years of federal protections for abortion access. The Dobbs decision left it up to states whether to outlaw or restrict abortion care.

What did Roe v Wade establish?

The ruling from Roe v Wade affirmed a constitutional right for an abortion through the 14th Amendment’s fundamental “right to privacy” provision.

The decision ultimately gave women total autonomy to terminate a pregnancy up to about 24 weeks, and allowed some state influence over abortions in the second and third trimesters, though a series of restrictions imposed on the state level – many of which have been challenged in courts – have sought to undermine abortion care.

A ruling in Planned Parenthood v Casey upheld the “essential holding” of the Roe decision and prohibited states from placing an “undue burden” on access to care.

Then as now, anti-abortion advocates sought to argue that life begins at conception. The court ultimately did not weigh in on the “fetal personhood” argument, with Justice Samuel Altio writing that the Dobbs opinion “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth”.

Was Roe v Wade overturned?

Yes. After an unprecedented leaked draft opinion from Justice Alito – first reported by Politico – indicated that the court’s conservative majority will vote to overturn Roe and Casey, the court’s decision on 24 June was effectively the same opinion from the draft.

“We hold that Roe and Casey must be overruled,” he wrote in a draft of an opinion dated 10 February. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

There are at least 13 states with so-called “trigger” laws designed to take effect without Roe. Several state-level legal challenges are underway to block restrictions.

As many as 26 states could outlaw abortion without Roe, with states legislatures poised to draft more-restrictive laws unbridled from constitutional obligations to protect access to care.

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