In a historic culmination of a five-decade effort by the pro-life movement, the U.S. Supreme Court on Friday overruled Roe v. Wade and sent the issue of abortion back to the states, declaring that the Constitution is silent on abortion and that Roe was “egregiously wrong from the start.”
It was one of the most significant decisions in the nation’s 246-year history.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote for the majority.
The vote was 5-4 to overturn Roe and 6-3 to uphold the Mississippi law at the center of the case. Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett joined Alito in the majority opinion. Chief Justice John Robert concurred in the judgment, saying he would not have overturned Roe but would have upheld the Mississippi law, which prohibits abortion after the 15th week of pregnancy.
The Supreme Court’s Roe v. Wade decision on Jan. 22, 1973 legalized abortion nationwide, while its companion ruling, Doe v. Bolton – released the same day – allowed abortion for virtually any reason through all nine months of pregnancy. Both decisions saw a 7-2 split.
There have been more than 60 million legal abortions in the nation’s history.
“We hold that Roe and Casey must be overruled,” Alito wrote. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
Roe’s legal reasoning, Alito wrote for the majority, was “exceptionally weak.”
“Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito wrote.
The nation’s 50 states, Alito emphasized, each must now determine whether abortion is legal.
“In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being,’” Alito wrote. “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
By legalizing Roe v. Wade in 1973, Alito wrote, the court “short-circuited the democratic process” by “closing it to the large number of Americans who dissented in any respect from Roe.”
The overturning of Roe became the pro-life movement’s primary goal soon after the decision was handed down in 1973, yet faced an uphill battle with seven out of the court’s nine justices affirming abortion rights.
President Ronald Reagan gave pro-lifers hope when he won in 1980, embracing their cause and delivering an address two years later when he said Americans “have a duty to protect the life of the unborn child.” He also endorsed legislation to “end the practice of abortion on demand.” In 1983, he even penned a book, “Abortion and the Conscience of the Nation,” writing plainly, “As we continue to work to overturn Roe v. Wade, we must also continue to lay the groundwork for a society in which abortion is not the accepted answer to unwanted pregnancy.”
Although Reagan left office in 1989, the pro-life community had another advocate in his successor, President George H.W. Bush, who ran on a pro-life platform and pledged to continue Reagan’s policies.
By the time the U.S. Supreme Court took up a major abortion case in 1992 – Planned Parenthood v. Casey – pro-lifers believed they possibly had the votes to overturn Roe. Reagan had nominated three justices, and Bush had nominated two. Those five justices, combined with the two dissenting justices in Roe who were still on the court – Chief Justice William Rehnquist and Justice Byron White – meant that Roe potentially could be struck down in a 7-2 ruling. Adding to the drama, the Bush administration submitted its own brief “strongly” urging the court to overturn Roe.
In the end, though, the court upheld Roe in 1992, 5-4. Although Reagan nominee Antonin Scalia voted with the minority to overturn Roe, two other Reagan nominees – Sandra Day O’Connor and Anthony Kennedy – voted to uphold it. Bush’s nominees, too, split on the issue, with Clarence Thomas voting to overturn Roe but Bush nominee David Souter supporting it.
“I continue to be convinced that the majority of the court at that time knew that Roe v. Wade had been wrongly decided – and that they would not … have voted as the court did in Roe v. Wade 20 years earlier,” Kenneth Starr, who served as solicitor general under Bush and argued the case, told Christian Headlines in 2021. “But they blinked.”
The pro-life community was facing a stark reality: Pro-life presidents had nominated the previous five justices to the Supreme Court, but only two of them – Scalia and Thomas – had voted to overturn Roe. (Although to be fair to Reagan, his initial nominee for Kennedy’s seat – Roe opponent Robert Bork – had been defeated in the Senate.)
The momentum began to shift to the pro-life community more than a decade later during George W. Bush’s presidency. He replaced the late William Rehnquist with John Roberts, who became the chief justice. Bush then nominated Samuel Alito to take the spot of the retiring Sandra Day O’Connor, a Roe supporter. In 2006, Roberts and Alito each voted to uphold a ban on partial-birth abortion – a ban that the high court had opposed six years earlier. (O’Connor, in that 2000 case, had sided with pro-choicers.)
The presidency of Donald Trump tipped the legal scales to the pro-life community. He began by replacing the late Justice Antonin Scalia with Justice Neil Gorsuch. Although that conservative-for-conservative swap did not change the ideological makeup of the court, the next two nominees did. In 2018, Trump nominated Brett Kavanaugh to replace Kennedy, a supporter of Roe. Then, in 2020, Trump nominated Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg, another Roe backer.
The pro-life community had entered the Trump presidency with three Supreme Court votes – at most – on their side (not counting Scalia, who had passed). It exited with a majority.
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.