Editing Roe v. Wade (section)

== Subsequent judicial developments ==
''Roe'' was embedded in a long line of cases concerning personal liberty in the realm of privacy, since ''Roe'' was based on individual liberty cases concerning privacy like ''[[Meyer v. Nebraska]]'' (1923), ''[[Griswold v. Connecticut]]'' (1965), ''[[Loving v. Virginia]]'' (1967) and ''[[Eisenstadt v. Baird]]'' (1972)<ref>{{cite web |title=Roe v. Wade, 410 U.S. 113 (1973), at 152–153. |url=https://supreme.justia.com/cases/federal/us/410/113/ |publisher=Justia US Supreme Court Center |access-date=May 30, 2022 |date=January 22, 1973}}</ref><ref name="20220508NYTLiptak">{{cite news |last1=Liptak |first1=Adam |title=If Roe Falls, Is Same-Sex Marriage Next? |url=https://www.nytimes.com/2022/05/11/us/politics/roe-wade-supreme-court-abortion.html |access-date=May 30, 2022 |work=The New York Times |date=May 8, 2022 |archive-url=https://web.archive.org/web/20220526165156/https://www.nytimes.com/2022/05/11/us/politics/roe-wade-supreme-court-abortion.html |archive-date=May 26, 2022}}</ref><ref>{{cite news |last1=Bazelon |first1=Emily |title=America Almost Took a Different Path Toward Abortion Rights |url=https://www.nytimes.com/2022/05/20/magazine/roe-v-wade-abortion-rights.html |access-date=May 30, 2022 |work=The New York Times |date=May 20, 2022 |archive-url=https://web.archive.org/web/20220520091312/https://www.nytimes.com/2022/05/20/magazine/roe-v-wade-abortion-rights.html |archive-date=May 20, 2022 |url-status=live}}</ref> and became a foundation for individual liberty cases concerning privacy like ''[[Lawrence v. Texas]]'' (2003) and ''[[Obergefell v. Hodges]]'' (2015).<ref name="20220508NYTLiptak" /><!--<ref>{{cite news |last1=Northup |first1=Nancy |title=Opinion: Roe isn't just about women's rights. It's about everyone's personal liberty. |url=https://www.washingtonpost.com/opinions/roe-isnt-just-about-womens-rights-its-about-everyones-personal-liberty/2018/07/08/527d8548-8160-11e8-b658-4f4d2a1aeef1_story.html |access-date=May 28, 2022 |publisher=The Washington Post |date=July 8, 2018 |archive-url=https://web.archive.org/web/20201118203704/https://www.washingtonpost.com/opinions/roe-isnt-just-about-womens-rights-its-about-everyones-personal-liberty/2018/07/08/527d8548-8160-11e8-b658-4f4d2a1aeef1_story.html |archive-date=November 18, 2020}}</ref> --><ref>{{cite web |title=LGBTQ+: What happens if Roe v. Wade is overturned? LGBTQ+ legal experts are worried about civil rights. |last1=Sosin|first1=Kate|last2=Rummler|first2=Orion|url=https://19thnews.org/2022/05/lgbtq-civil-rights-roe-supreme-court/ |website=19thnews.org |access-date=May 28, 2022 |archive-url=https://web.archive.org/web/20220528220440/https://19thnews.org/2022/05/lgbtq-civil-rights-roe-supreme-court/ |archive-date=May 28, 2022 |date=May 6, 2022}}</ref>
<!--<ref>{{cite news |title='Griswold v. Connecticut,' 'Roe v. Wade' and the Right to Privacy |url=https://goodfaithmedia.org/griswold-v-connecticut-roe-v-wade-and-the-right-to-privacy/ |access-date=May 30, 2022 |publisher=Good Faith Media |date=May 4, 2022 |archive-url=https://web.archive.org/web/20220530150353/https://goodfaithmedia.org/griswold-v-connecticut-roe-v-wade-and-the-right-to-privacy/ |archive-date=May 30, 2022}}</ref><ref>{{cite news |last1=Moody |first1=Randy |title=Midlands Voices: How Meyer v. Nebraska and the 14th Amendment are tied to Roe v. Wade |url=https://omaha.com/opinion/columnists/midlands-voices-how-meyer-v-nebraska-and-the-14th-amendment-are-tied-to-roe-v/article_3a69dbd4-cfd9-11ec-b548-bf59192120ae.html |access-date=May 30, 2022 |publisher=Omaha World-Herald |date=May 10, 2022 |archive-url=https://web.archive.org/web/20220530145912/https://omaha.com/opinion/columnists/midlands-voices-how-meyer-v-nebraska-and-the-14th-amendment-are-tied-to-roe-v/article_3a69dbd4-cfd9-11ec-b548-bf59192120ae.html |archive-date=May 30, 2022}}</ref> -->

[[File:Thurgood Marshall Rodriguez diagram.svg|thumb|Two of the cases Justice Marshall discussed in his ''Rodriguez'' dissent]]
Two months after the decision in ''Roe'', the Court issued a ruling about school funding in ''[[San Antonio Independent School District v. Rodriguez]]''.<ref>[https://www.virginialawreview.org/wp-content/uploads/2020/12/1963-1.pdf San Antonio Independent School District v. Rodriguez and Its Aftermath] by Jeffrey S. Sutton, ''Virginia Law Review'', Volume 94, Number 8, December 2008, page 1968 (page 6 of the pdf)</ref> The majority opinion cited ''Roe v. Wade'' to assert that privacy itself was a fundamental right, while procreation implicitly counted as "among the rights of personal privacy protected under the Constitution."<ref name=rodriguez33>[https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219 ''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)] at 33 and footnote 76, ''justia.com''</ref> In his dissenting opinion, Justice Thurgood Marshall stated that ''Roe v. Wade'' "reaffirmed its initial decision in ''[[Buck v. Bell]]''", and noted where ''Buck'' was cited in ''Roe''.<ref name=rodriguez101>[https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219 ''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)] at 101 (Marshall, J., dissenting), ''justia.com''</ref> He found ''Roe'' to be a continuation of the Court's practice of granting only a limited stature to the right to procreate,<ref>[https://books.google.com/books?id=XNp5VWN5brwC&pg=PA48 In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought] by Carl N. Degler, New York: Oxford University Press, 1991, page 48, footnote; In 1996, literary scholar [[Roger Shattuck]] also observed that ''Roe v. Wade'' exploited a preexisting lack of protection for procreation in American jurisprudence. See [https://books.google.com/books?id=5u3se3N0bZQC&pg=PA197 Forbidden Knowledge: From Prometheus to Pornography] by Roger Shattuck, San Diego, California: Harcourt Brace and Company, 1996, page 197, footnote</ref> since the Court's decision treated procreation as less important than the right to privacy.<ref name=rodriguez101/> He observed that although past decisions showed strong concern against the state discriminating against certain groups concerning procreation and certain other rights, the "Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection."<ref name=rodriguez100>[https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219 ''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)] at 100 (Marshall, J., dissenting), ''justia.com''</ref> Instead, in ''Roe'', "the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy{{nbsp}}..."<ref name=rodriguez101/> Justice Marshall thought that the method used in ''Rodriguez'' for determining which rights were more fundamental was wrong, and proposed a different method which would result in procreation receiving greater legal protection.<ref name=rodriguez102103>[https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219 ''San Antonio Independent School District v. Rodriguez'' 411 U.S. 1 (1973)] at 102–103 (Marshall, J., dissenting), ''justia.com''</ref>

The legal interaction between ''Roe v Wade'', the Fourteenth Amendment as understood post-''Roe'', and changing medical technology and standards caused the development of civil suits for [[wrongful birth]] and [[wrongful life]] claims.<ref>[https://digitalcommons.gardner-webb.edu/cgi/viewcontent.cgi?article=1029&context=undergrad-honors Perfection: The Perfection: The Fatality of Down Syndrome] by Mallory Baucom, Undergraduate honors thesis, ''Gardner-Webb University'', December 2018, page 11 (page 12 of the pdf)</ref>{{better source needed|date=April 2023}} Not all states permit a parent to sue for wrongful birth<ref>[https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1663&context=healthmatrix Prenatal Tort Slippage] ''Health Matrix: The Journal of Law-Medicine'', Volume 31, Issue 1, 2001, page 222 (page 3 of the pdf)</ref> or a child to sue for wrongful life.<ref name="Fox">{{cite journal |last1=Fox |first1=Dov |title=Privatizing procreative liberty in the shadow of eugenics |journal=Journal of Law and the Biosciences |date=11 June 2018 |volume=5 |issue=2 |pages=355–374 |doi=10.1093/jlb/lsy011 |pmid=30191069 |pmc=6121041 |doi-access=free }}</ref> The constitutionality of wrongful life claims is controversial within the [[legal profession]], even for states which currently allow them.<ref>[https://www.iadclaw.org/assets/1/17/Whats_Unconstitutional_About_Wrongful_Life_Claims_-_Ask_Jane_Roe.pdf What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe...] by Bruce R. Parker, Scott C. Armstrong, and Thomasina Poirot, ''Defense Counsel Journal'', Volume 87, Number 3, July 2020, page 2</ref> Pre-''Roe'', a state court dismissed a lawsuit making both a wrongful birth and life claim, which was unsuccessfully appealed to the [[Supreme Court of New Jersey]].<ref>[https://law.justia.com/cases/new-jersey/supreme-court/1967/49-n-j-22-0.html ''Gleitman v. Cosgrove''] 49 N.J. 22 (1967), 227 A.2d 689, ''justia.com''</ref>

Prior to ''Roe'', the [[New Jersey Superior Court#Chancery Division|Chancery Division of the Superior Court of New Jersey]] found that a pregnant [[Jehovah's Witnesses|Jehovah's Witness]] woman could be ordered to submit to lifesaving [[blood transfusion]]s due to the state's compelling interest "to save her life and the life of her unborn child."<ref name=raleighfitkinpaulmorgan>[https://law.justia.com/cases/new-jersey/supreme-court/1964/42-n-j-421-0.html ''Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson'' 42 N.J. 421 (1964)], ''justia.com''.</ref> The Court appointed a [[legal guardian]] to represent the unborn child, and ordered the guardian to consent to blood transfusions and to "seek such other relief as may be necessary to preserve the lives of the mother and the child".<ref name=raleighfitkinpaulmorgan/> After ''Roe'', the [[Illinois Appellate Court#Fifth District|Fifth District Appellate Court in Illinois]] ruled that medical professionals had wrongly transfused blood into a pregnant Jehovah's Witness woman on the basis from ''Roe'' that the "state's important and legitimate interest becomes compelling at viability" and her fetus was not yet viable.<ref>[https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/1997/1962316.html ''In re Brown'', Fifth Division, December 31, 1997 No. 1-96-2316], ''justia.com''</ref><ref>[https://journalofethics.ama-assn.org/article/when-parents-religious-belief-endangers-her-unborn-child/2005-05 When a Parent's Religious Belief Endangers Her Unborn Child] by Faith Lagay, ''Virtual Mentor'', Volume 7, Issue 5, May 2005, pages 375–378; for general context see [[Jehovah's Witnesses and blood transfusions]]</ref>

President Reagan, who supported legislative restrictions on abortion, began [[Appointments Clause#Nomination|making federal judicial appointments]]{{Broken anchor|date=2025-05-17|bot=User:Cewbot/log/20201008/configuration|target_link=Appointments Clause#Nomination|reason= The anchor (Nomination) [[Special:Diff/1290920537|has been deleted]].|diff_id=1290920537}} in 1981. Reagan denied that there was any [[litmus test (politics)|litmus test]]: "I have never given a litmus test to anyone that I have appointed to the bench{{nbsp}}... . I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are [[Judicial restraint|judges that will interpret the law and not write the law]]. We've had too many examples in recent years of courts and judges legislating."<ref>Reagan, Ronald. ''[https://www.reaganlibrary.gov/archives/speech/interview-eleanor-clift-jack-nelson-and-joel-havemann-los-angeles-times Interview With Eleanor Clift, Jack Nelson, and Joel Havemann of the Los Angeles Times]'' (June 23, 1986). Retrieved January 23, 2007. ([https://web.archive.org/web/20210529221235/https://www.reaganlibrary.gov/archives/speech/interview-eleanor-clift-jack-nelson-and-joel-havemann-los-angeles-times Archived] December 21, 2021)</ref>

In addition to Justices White and Rehnquist, Reagan-appointee Justice [[Sandra Day O'Connor]] began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the ''Roe'' Court was "unworkable."<ref>{{ussc|name=City of Akron v. Akron Center for Reproductive Health|volume=462|page=416|pin=|year=1983}}.</ref> Shortly before his retirement, Chief Justice Warren Burger suggested in 1986 that ''Roe'' be "reexamined";<ref name="Thornburgh">{{ussc|name=Thornburgh v. American College of Obstetricians and Gynecologists|volume=476|page=747|pin=|year=1986}}.</ref> the associate justice who filled Burger's place on the Court—Justice [[Antonin Scalia]]—vigorously opposed ''Roe''. Concern about overturning ''Roe'' played a major role in the defeat of [[Robert Bork Supreme Court nomination|Robert Bork's nomination to the Court]] in 1987; the man eventually appointed to replace ''Roe''-supporter Justice Lewis Powell was Justice [[Anthony Kennedy]].

[[File:Bundesarchiv B 145 Bild-F044193-0031, Bundesverfassungsgericht, Verhandlung I. Senat.jpg|thumb|left|Oral hearing for the German Constitutional Court's abortion decision, November 18, 1974]]

The justices voting in the majority on the [[Federal Constitutional Court]] in pre-unification [[West Germany]] rejected the trimester framework in the ''[[German Constitutional Court abortion decision, 1975]]'' on the basis that development during pregnancy is a continuous whole rather than made up of three trimesters. The Court found that the right to life extends also to the unborn and that life begins on the fourteenth day after conception.<ref>[https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1017&context=law_faculty_scholarship Abortion and Constitution: United States and West Germany] by Donald P. Kommers,  1977, page 267 (page 14 of the pdf)</ref> It also found that the liberties of pregnant mothers were qualified by the existence of another life inside them. The Court found that "A compromise which guarantees the protection of the life of the one about to be born and permits the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy always means the destruction of the unborn life."<ref name=rauch/> It ruled that the fetus must be protected, and the first responsibility for this lies with the mother, with a second responsibility in the hands of the [[Politics of Germany#Legislature|legislature]].<ref>[https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1017&context=law_faculty_scholarship Abortion and Constitution: United States and West Germany] by Donald P. Kommers,  1977, page 268 (page 15 of the pdf)</ref> The Court allowed for a balancing of rights between the mother and unborn child, but required that the rights of each be considered within a framework which acknowledged the supreme, fundamental value of human life. Legislation allowing abortion could be constitutional if the rights of the unborn persons were acknowledged in this manner.<ref>[https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1017&context=law_faculty_scholarship Abortion and Constitution: United States and West Germany] by Donald P. Kommers,  1977, page 269 (page 16 of the pdf)</ref>

Two minority justices in the ruling for the German Constitutional Court abortion decision in 1975 remarked that "the Supreme Court of the United States has even regarded punishment for the interruption of pregnancy, performed by a physician with the consent of the pregnant woman in the first third of pregnancy, as a violation of fundamental rights. This would, according to German constitutional law, go too far indeed."<ref name=rauch>{{cite journal |url=http://groups.csail.mit.edu/mac/users/rauch/germandecision/german_abortion_decision2.html |first=Robert E. |last=Jonas |author2=John D. Gorby |journal=The John Marshall Journal of Practice and Procedure |volume=9 |page=605 |title=German Constitutional Court Abortion Decision (English translation of German text) |access-date=January 2, 2022}}</ref>

In 1988, the [[Supreme Court of Canada]] used the rulings in both ''Roe'' and ''Doe v. Bolton'' as grounds to find Canada's federal law limiting abortions to certified hospitals unconstitutional in ''[[R. v. Morgentaler]]''.<ref>[https://ca.vlex.com/vid/r-v-morgentaler-680839173 ''R. v. Morgentaler''], 1 S.C.R. 30 (1988), ''V/lex''</ref>

=== ''Planned Parenthood v. Danforth'' ===
[[File:Burger Court in 1976.jpg|thumb|[[Burger Court]] in 1976]]
In ''[[Planned Parenthood of Central Missouri v. Danforth|Planned Parenthood v. Danforth]]'', 428 U.S. 52 (1976),<ref>{{ussc|name=Planned Parenthood of Central Missouri v. Danforth|volume=428|page=52|year=1976}}.</ref> the plaintiffs challenged a Missouri statute which regulated abortion. In the regulations for abortions on demand, the state required prior written consent from a parent if the patient was a minor or a spouse if the patient was married. For pregnancies at 12 weeks and later, the statute also banned [[Instillation abortion|saline abortions]],<ref name=Young/> in which chemicals are injected into the [[amniotic sac]] to burn the fetus.<ref>[http://news.bbc.co.uk/2/hi/health/4500022.stm 'I survived an abortion attempt'] by Jane Elliott, December 6, 2005, ''BBC News''</ref> The portions of the statute involving parental or spousal consent and prohibiting saline abortions were struck down.<ref name=Young>{{cite journal|last=Quast|first=Gerald D.|title=Constitutional Law-Blanket Parental Consent Requirement for Minor's Abortion Decision Is Unconstitutional|journal=Texas Tech Law Review|date=1976|volume=8|issue=2|pages=394–402|pmid=11664734|url=https://ttu-ir.tdl.org/bitstream/handle/2346/82840/19_8TexTechLRev394%281976-1977%29.pdf?sequence=1 |access-date=January 9, 2022}}</ref>

=== ''Floyd v. Anders'' ===
In ''Floyd v. Anders'', 440 F. Supp. 535 (D.S.C. 1977), South Carolina attempted to prosecute a doctor for illegal abortion and murder after he attempted to abort an African American boy at 25 weeks. During the abortion, the boy was born alive and survived for 20 days before dying.<ref>[https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1945&context=nlr The Root and Branch of ''Roe v. Wade''] by John T. Noonan Jr., ''Nebraska Law Review'', Volume 63, Issue 4, Article 4, 1984, page 674, (page 8 of the pdf)</ref> His prosecution was blocked by Judge [[Clement Haynsworth]], and shortly afterwards by a unanimous three judge panel for the [[United States District Court for the District of South Carolina|U.S. District Court for the District of South Carolina]]. Judge Haynsworth, writing for the panel, stated "Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment."<ref>[https://law.justia.com/cases/federal/district-courts/FSupp/440/535/1817339/ ''Floyd v. Anders'', 440 F. Supp. 535 (D.S.C. 1977)] at 539, ''justia.com''</ref> [[John T. Noonan Jr.|John T. Noonan]] criticized this from an anti-abortion perspective, stating that "Judge Haynsworth had replaced the Supreme Court's test of potential ability to live with a new test of actual ability to live indefinitely. He also had spelled out what was implied in ''Roe v. Wade'' but never actually stated there. For the American legal systems the fetus in the womb was not alive."<ref>[https://humanlifereview.com/issue/summer-1979/ The Abortion Liberty] by John T. Noonan Jr., ''Human Life Review'', Summer 1979, Volume 5, Number 3, page 74</ref> The standard in ''Roe'' for viability outside the womb required a "capability of meaningful life".<ref name=roe163>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 163; "Early death as a management option" became a medical practice for disabled infants; the practice was legally defended under the right to privacy. Early death for infants was considered "a late abortion" but became regulated by the [[Baby Doe Law]]. See [https://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/hentoff.html To be liberal and pro-life; Nat Hentoff, Champion of 'Inconvenient Life'] by Cathryn Donohoe, ''Washington Times'', November 6, 1989, which discusses the journalism of [[Nat Hentoff]].</ref> Without this capability, the state had no compelling "important and legitimate interest in potential life".<ref name=roe163/>

=== ''Webster v. Reproductive Health Services'' ===
In a 5–4 decision in 1989's ''[[Webster v. Reproductive Health Services]]'', Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule ''Roe'', because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution." In particular, the Court found that the ability to have a nontherapeutic abortion was not an affirmative right of the sort that required the state to pay for it.<ref name="Webster">{{ussc|name=Webster v. Reproductive Health Services|volume=492|page=490|pin=|year=1989}}.</ref> In this case, the Court upheld several abortion restrictions, and modified the ''Roe'' trimester framework.<ref name="Webster"/>

In concurring opinions, Justice O'Connor refused to reconsider ''Roe'', and Justice Antonin Scalia criticized the Court and Justice O'Connor for not overruling ''Roe''.<ref name="Webster"/> Justice Blackmun stated in his dissent that Justices White, Kennedy and Rehnquist were "callous" and "deceptive", that they deserved to be charged with "cowardice and illegitimacy", and that their [[Plurality (voting)|plurality]] opinion "[[:wikt:foment#Verb|foments]] disregard for the law."<ref name="Webster"/> White had recently opined that the majority reasoning in ''Roe v. Wade'' was "warped."<ref name="Thornburgh"/>

=== ''Planned Parenthood v. Casey'' ===
[[File:Rehnquist Court 1991-1993.jpg|thumb|1991–1993 Rehnquist Court]]
During initial deliberations for ''[[Planned Parenthood v. Casey]]'' (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and [[Clarence Thomas|Thomas]]) were willing to effectively overturn ''Roe''. Justice Kennedy changed his mind after the initial conference,<ref>{{cite news|last=Totenberg|first=Nina|author-link=Nina Totenberg|url=https://www.npr.org/templates/story/story.php?storyId=1745254|title=Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show|publisher=NPR|work=Morning Edition|date=March 4, 2004|access-date=January 30, 2007}}</ref> and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of ''Roe'',{{sfnp|Greenhouse|2005|pp=203–206}} but instead of justifying the liberty to abort as being based on privacy as in ''Roe'', it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,<ref>[https://documents.law.yale.edu/sites/default/files/beforeroe2nded_1.pdf Before Roe v. Wade] by Linda Greenhouse and Reva B. Siegel, ''Yale Law School'', 2012, pages 260–261 (pages 276–277 of the pdf)</ref> "Our law affords constitutional protection to personal decisions relating to marriage, [[:wikt:procreation#Noun|procreation]], contraception, family relationships, child rearing, and education.{{nbsp}}..."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 55.</ref> and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 56.</ref>

The plurality of justices stated that abortion-related legislation should be reviewed based on the [[undue burden standard]] instead of the strict scrutiny standard from ''Roe''.<ref>[https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1608&context=hastings_constitutional_law_quaterly The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split over the Salerno Test] by Ruth Burdick, ''Hastings Constitutional Law Quarterly'', Volume 23, Issue 3, Article 8, pages 830–832, (pages 7–9 of the pdf)</ref>

The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28-week line from 1973.<ref>''Casey'', [https://www.law.cornell.edu/supremecourt/text/505/833#fn6-1 505 U.S. at 6.]</ref> They also felt that fetal viability was "more workable" than the trimester framework.<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 95.</ref> They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in ''Roe''."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 102.</ref> Only Justice Blackmun wanted to retain ''Roe'' entirely and issue a decision completely in favor of [[Planned Parenthood]].<ref name=Blackmun/> Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for ''[[Colautti v. Franklin]]''.<ref>[https://supreme.justia.com/cases/federal/us/439/379/ ''Colautti v. Franklin'', 439 U.S. 379 (1979)], ''justia.com'', "The viability determination requirement of § 5(a) is void for vagueness."</ref>

Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason [[bigamy]] was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally [[Proscription|proscribed]].<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 393–394 (Scalia, J., dissenting).</ref> He also asked:<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 989 n.5 (Scalia, J., concurring in part and dissenting in part).</ref>

<blockquote>Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.</blockquote>

=== ''Stenberg v. Carhart'' ===
[[File:Rehnquist Court in 1994.jpg|thumb|The [[Rehnquist Court]] in 1994; the members pictured are the ones who decided ''Stenberg v. Carhart''. Justice Ginsburg replaced Justice White.]]
During the 1990s, [[Nebraska]] enacted a law banning partial-birth abortion. The law allowed another second-trimester abortion procedure known as [[dilation and evacuation]]. In 2000, the Supreme Court struck down the law by a 5–4 vote in ''[[Stenberg v. Carhart]]'', with Justice [[Stephen Breyer]] writing for the majority that sometimes partial-birth abortion "would be the safest procedure".<ref>[https://www.law.cornell.edu/supct/html/99-830.ZO.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Opinion of the Court], ''law.cornell.edu''</ref> Justice O'Connor wrote a concurrence stating Nebraska was actually banning both abortion methods.<ref>"and it proscribes not only the D&X procedure but also the D&E procedure" [https://www.law.cornell.edu/supct/html/99-830.ZC1.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), O'Connor, J., concurring], ''law.cornell.edu''</ref> Justices Ginsburg and Stevens joined each other's concurrences. Justice Stevens stated that "the notion that either of these two equally gruesome procedures performed at this late [[Pregnancy (mammals)#Gestation periods|stage of gestation]] is more akin to infanticide than the other{{nbsp}}... is simply irrational."<ref>[https://www.law.cornell.edu/supct/html/99-830.ZC.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Stevens, J., concurring], ''law.cornell.edu''</ref> Justice Ginsburg stated that the "law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."<ref>[https://www.law.cornell.edu/supct/html/99-830.ZC2.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Ginsburg, J., concurring], ''law.cornell.edu''</ref>

Justice Thomas's dissent stated, "The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body."<ref>[https://www.law.cornell.edu/supct/html/99-830.ZD3.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Thomas, J., dissenting], ''law.cornell.edu''</ref> Justice Scalia joined Justice Thomas's dissent and also wrote his own, stating that partial-birth abortion is "so horrible that the most clinical description of it evokes a shudder of revulsion" and that this case proved ''Casey'' was "unworkable".<ref>[https://www.law.cornell.edu/supct/html/99-830.ZD1.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Scalia, J., dissenting], ''law.cornell.edu''</ref> Chief Justice Rehnquist joined the two dissents by Justices Scalia and Thomas.<ref>[https://www.law.cornell.edu/supct/html/99-830.ZD.html ''Stenberg v. Carhart'' (99–830) 530 U.S. 914 (2000), Rehnquist, C. J., dissenting], ''law.cornell.edu''</ref>

Justice Kennedy, who had co-authored ''Casey'', dissented in ''Stenberg''. He described in graphic detail exactly how a fetus dies while being [[Dismemberment|dismembered]] during a dilation and evacuation procedure. He reasoned that since Nebraska was not seeking to prohibit it, the state was free to ban partial-birth abortion.<ref name="Stenberg">{{ussc|name=Stenberg v. Carhart|volume=530|page=914|pin=958–59|year=2000}} ("The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.").</ref>

=== ''Gonzales v. Carhart'' ===
In 2003, Congress passed the [[Partial-Birth Abortion Ban Act]],<ref>{{cite web| title=S.3 – Partial-Birth Abortion Ban Act of 2003| date=November 5, 2003 | url=https://www.congress.gov/bill/108th-congress/senate-bill/3 |publisher=Congress.gov |access-date=May 20, 2019}}</ref> which led to a lawsuit in the case of ''[[Gonzales v. Carhart]]''.<ref>{{Cite web|url=https://www.cbsnews.com/news/late-term-vs-partial-birth/|title='Late Term' Vs. 'Partial Birth'|last=Montopoli|first=Brian|date=November 7, 2006|website=CBS News|language=en-US|access-date=January 16, 2020}}</ref> The Court previously ruled in ''Stenberg v. Carhart'' that a state's ban on partial-birth abortion was unconstitutional because such a ban did not have an exception for the health of the woman.<ref name=":2">{{Cite book|url=https://books.google.com/books?id=bovbBAAAQBAJ&pg=PA121|title=Law, Policy and Reproductive Autonomy|last=Nelson|first=Erin|year=2013|publisher=Bloomsbury Publishing|isbn=978-1-78225-155-2|page=121|language=en}}</ref> The membership of the Court changed after ''Stenberg'', with Chief Justice [[John Roberts]] and Justice [[Samuel Alito]] replacing Chief Justice Rehnquist and Justice O'Connor.<ref name=":3">{{Cite book|url=https://books.google.com/books?id=s2g1DwAAQBAJ&pg=PA11|title=Encyclopedia of American Civil Rights and Liberties|last=Mezey|first=Susan Gluck|year= 2017|publisher=ABC-CLIO|isbn=978-1-4408-4110-1|editor-last=Stooksbury|editor-first=Kara E.|edition=Revised and Expanded, 2nd|page=11|language=en|editor-last2=Scheb|editor-first2=John M. II|editor-last3=Stephens|editor-first3=Otis H. Jr}}</ref><ref name=":4">{{Cite news|url=https://www.nytimes.com/2007/04/18/us/18cnd-scotus.html|title=Supreme Court Upholds Ban on Abortion Procedure|last=Stout|first=David|date=April 18, 2007|work=The New York Times|access-date=January 16, 2020|language=en-US|issn=0362-4331}}</ref> The ban at issue in ''Gonzales v. Carhart'' was similar to the one in ''Stenberg'',<ref name=":2" /> but had been adjusted to comply with the Court's ruling.<ref>[https://supreme.justia.com/cases/federal/us/550/124/ ''Gonzales v. Carhart'', 550 U.S. 124 (2007)], ''justia.com'', "Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg."</ref>

On April 18, 2007, a 5 to 4 decision upheld the constitutionality of the Partial-Birth Abortion Ban Act.<ref name=":4" /> Justice Kennedy wrote the majority opinion that Congress was within its power to ban partial-birth abortion. The Court left the door open for [[Facial challenge#Facial versus as-applied challenges|as-applied challenges]].<ref>[https://supreme.justia.com/cases/federal/us/550/124/ ''Gonzales v. Carhart'', 550 U.S. 124 (2007)], ''justia.com'', "While it found that it was not facially unconstitutional, it did not reject the possibility of an as-applied challenge."</ref> The opinion did not address whether ''Casey'' remained valid. Instead it only assumed ''Casey'' was valid "for the purposes of this opinion".<ref>[https://supreme.justia.com/cases/federal/us/550/124/ ''Gonzales v. Carhart'', 550 U.S. 124 (2007)], ''justia.com'', "We assume the following principles for the purposes of this opinion. Before viability{{nbsp}}... ''Casey'', in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar."</ref>

Chief Justice John Roberts and Justices Scalia, Thomas, and Alito joined the majority. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in ''Roe v. Wade'' and ''Planned Parenthood v. Casey'' should be reversed.<ref>[https://supreme.justia.com/cases/federal/us/550/124/#tab-opinion-1962399  Concurrence (Thomas)], ''Gonzales v. Carhart'', 550 U.S. 124 (2007), ''justia.com'',</ref> They also noted that the Partial-Birth Abortion Ban Act may have exceeded the powers of Congress under the [[Commerce Clause]] but that the question was not raised.<ref>{{cite book|url=https://books.google.com/books?id=Xe6vDAAAQBAJ&pg=PA285|title=The End of Sex and the Future of Human Reproduction|last=Greely|first=Henry T.|year=2016|publisher=Harvard University Press|isbn=978-0-674-72896-7|page=285|language=en}}</ref>

Justice Ginsburg, joined by Justices Stevens, [[David Souter|Souter]], and Breyer, dissented,<ref name=":3" /> contending that the ruling ignored precedent and that abortion rights should instead be justified by equality.<ref name=":4" />

=== ''Dubay v. Wells'' ===
[[File:David M. Lawson.JPG|thumb|upright=0.65|Judge David Lawson]]

''[[Dubay v. Wells]]'' was a 2006 paternity case where a man argued he should not have to pay [[Child support in the United States|child support]] for a child he did not want to parent. The case was billed as "''Roe v. Wade'' for men".<ref>[http://www.nationalcenterformen.org/ The National Center For Men], p.[http://www.nationalcenterformen.org/page7.shtml 7] {{Webarchive|url=https://web.archive.org/web/20180502152025/http://www.nationalcenterformen.org/page7.shtml |date=2018-05-02 }}.</ref>

On March 9, 2006, Dubay filed a lawsuit before the [[United States District Court for the Eastern District of Michigan]]. [[Michigan Attorney General|Michigan's Attorney General]], Joel D. McGormley, made a [[Motion (legal)|motion to have the case dismissed]]. On July 17, 2006, District Court Judge [[David M. Lawson|David Lawson]] agreed and dismissed Dubay's lawsuit.<ref>[https://www.mied.uscourts.gov/PDFFIles/06-11016.pdf ''Dubay v. Wells''] {{webarchive|url=https://web.archive.org/web/20100527132809/http://www.mied.uscourts.gov/Opinions/lawsonpdf/06-11016.pdf |date=2010-05-27 }} 442 F.Supp.2d 404 (E. D. Mich., 2006)</ref> He appealed it once, to the [[United States Court of Appeals for the Sixth Circuit]], which also dismissed it, and stated:
<blockquote>Dubay's claim that a man's right to disclaim fatherhood would be analogous to a woman's right to abortion rests upon a false analogy. In the case of a father seeking to opt out of fatherhood and thereby avoid child support obligations, the child is already in existence and the state therefore has an important interest in providing for his or her support.<ref>{{Cite web|url=http://www.ca6.uscourts.gov/opinions.pdf/07a0442p-06.pdf|title=U.S. Court of Appeals for the Sixth Circuit, case No. 06-11016}}</ref></blockquote>

=== ''Whole Woman's Health v. Hellerstedt'' ===
[[File:Supreme Court US 2010.jpg|thumb|The [[Roberts Court]] in 2010; eight of the nine members pictured are the ones who decided ''Whole Woman's Health v. Hellerstedt''. Justice Scalia (front row, second left) died before the oral argument.]]

In 2013, the [[Texas House Bill 2|Texas legislature enacted restrictions]] which required abortion doctors to have [[admitting privileges]] at a local hospital and required abortion clinics to have facilities equivalent to others which conducted [[outpatient surgery]].<ref name=wholesyllabus/> On June 27, 2016, the Supreme Court in a 5–3 decision for ''[[Whole Woman's Health v. Hellerstedt]]'' struck down these restrictions.<ref name=wholesyllabus>[https://supreme.justia.com/cases/federal/us/579/15-274/ Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016)], ''justia.com''</ref>

The majority opinion by Justice Breyer struck down these two provisions of Texas law in a [[Facial challenge|facial]] manner—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. The ruling also stated that the task of judging whether a law puts an undue burden on a woman's right to abortion belongs with the courts and not the legislatures.<ref name="20160627SCOTUSDenniston">{{Cite web|url=http://www.scotusblog.com/2016/06/opinion-analysis-abortion-rights-reemerge-strongly/|title=Whole Woman's Health v. Hellerstedt – Opinion analysis: Abortion rights reemerge strongly|last=Denniston|first=Lyle|date=June 27, 2016|website=SCOTUSblog|access-date=June 29, 2016}}</ref>

=== ''Box v. Planned Parenthood'' ===
In 2016, Indiana passed House Bill 1337, enacting a law which regulated what is done with fetal remains and banning abortion for sexist, racist, or [[Ableism|ableist]] purposes.<ref>{{Cite journal |last=Berry |first=Thomas |date=2016-08-01 |title=A contractarian approach to the ethics of genetic-selective abortion |url=https://academic.oup.com/jlb/article/3/2/395/1751251 |journal=Journal of Law and the Biosciences |volume=3 |issue=2 |pages=395–403 |doi=10.1093/jlb/lsw020 |issn=2053-9711|doi-access=free }}</ref> In its unsigned 2019 ruling for ''[[Box v. Planned Parenthood of Indiana and Kentucky, Inc.]]'', the U.S. Supreme Court upheld the regulations about fetal remains, but declined to hear the remainder of the law, which had been blocked by lower courts.<ref>[https://www.oyez.org/cases/2018/18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.], ''oyez.org'', accessed January 13, 2022</ref> Justice Ginsburg dissented from the part of the ruling about fetal remains on the basis that the regulations violated ''Casey''.<ref>[https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf 18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.], May 28. 2019, Opinion of Ginsburg, J. concurring in part and dissenting in part, pages 1–2 (pages 25–26 of the pdf)</ref> She also criticized Justice Thomas over his use of the word "mother" in his concurrence.<ref>{{Cite book |last=Snead |first=O. Carter |url=https://books.google.com/books?id=R-_zDwAAQBAJ&pg=PA294 |title=What It Means to Be Human: The Case for the Body in Public Bioethics |date=2020-10-13 |publisher=Harvard University Press |isbn=978-0-674-98772-2 |at=footnote 146 on pages 294–295 |language=en}}</ref>

[[Sonia Sotomayor|Justice Sotomayor]] stated that she wished the Court would not have heard the case at all.<ref>[https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf 18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.], May 28. 2019, Sotomayor, per curiam, page 4, (page 4 of the pdf)</ref> Justice Thomas wrote a concurring opinion which expressed concern that the theory presented in ''[[Freakonomics]]'' echoed the views of the [[eugenics]] movement.<ref>[https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf 18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.], May 28. 2019, Opinion of Thomas, J., concurring, page 18 (page 22)</ref> He warned that "a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement". He predicted, "Although the Court declines to wade into these issues today, we cannot avoid them forever."<ref>[https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf 18-483 Box v. Planned Parenthood of Indiana and Kentucky, Inc.], May 28. 2019, Opinion of Thomas, J., concurring, pages 20–21 (pages 24–25)</ref>

===''Whole Woman's Health v. Jackson''===
In 2021, the state of Texas devised a legal workaround to ''Roe'' that allowed it to successfully outlaw abortion at six weeks of pregnancy despite the continued existence of ''Roe'' and ''Casey''. In the [[Texas Heartbeat Act]], the legislature created a novel enforcement mechanism that bars state officials from enforcing the statute and authorizes private individuals to sue anyone who performs or assists an illegal abortion.<ref>{{Cite web|url=https://statutes.capitol.texas.gov/docs/hs/htm/hs.171.htm#171.207 |title=Texas Health and Safety Code §§ 171.207–171.208|website= statutes.capitol.texas.gov|access-date=24 December 2021}}</ref><ref name="Tavernise">{{Cite web|url= https://www.nytimes.com/2021/07/09/us/abortion-law-regulations-texas.html|title=Citizens, Not the State, Will Enforce New Abortion Law in Texas|last=Tavernise|first=Sabrina|date=9 July 2021|website=www.newyorktimes.com|access-date=24 December 2021}}</ref> Because the Act is enforced by private citizens rather than government officials, there are no state officials that abortion providers can sue to stop the enforcement of the law, and they cannot obtain judicial relief that will stop private lawsuits from being initiated against them.<ref name="Jackson">{{cite web | title=Whole Woman's Health v. Jackson, No. 21-463 | url=https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf | date=December 10, 2021 | website=supremecourt.gov | access-date=December 26, 2021}}</ref> This has produced an end-run around ''Roe'' because the threat of private civil-enforcement lawsuits has forced abortion providers to comply with the Act despite its incompatibility with the Supreme Court's abortion pronouncements.<ref name="Gershman3">{{cite web | last1=Gershman | first1=Jacob | title=Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea | url=https://www.wsj.com/articles/behind-texas-abortion-law-an-attorneys-unusual-enforcement-idea-11630762683 | date=September 4, 2021 | work=[[The Wall Street Journal]] | access-date=December 24, 2021}}</ref><ref>{{Cite news|url=https://www.houstonchronicle.com/politics/texas/article/Austin-judge-blocks-enforcement-of-Texas-six-week-16425384.php|last=Blackburn|first=Jeremy|title=Abortion providers scramble to respond to patients before new Texas law takes effect|date=31 August 2021|newspaper=Houston Chronicle|access-date=24 December 2021}}</ref> Other states have copied this enforcement mechanism to sidestep ''Roe'' and immunize their anti-abortion statutes from judicial review.<ref name="HB4327">{{cite web |title=Text of HB 4327 |url= https://legiscan.com/OK/text/HB4327/id/2587278/Oklahoma-2022-HB4327-Enrolled.pdf |publisher=legiscan.com|access-date=May 25, 2022}}</ref><ref>{{cite web | url = https://www.nytimes.com/2022/05/25/us/oklahoma-abortion-ban-law-governor.html | title = Oklahoma Governor Signs Bill That Bans Most Abortions| first1 = Luke | last1 = Vander Ploeg | date=  May 25, 2022| access-date = May 25, 2022| work = [[New York Times]] }}</ref><ref>{{cite web | url = https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.html| title = Idaho Is First State to Pass Abortion Ban Based on Texas' Law | first1 = Kate | last1 = Zernike | date= March 14, 2022| access-date = June 15, 2022| work = The New York Times}}</ref> This maneuver has weakened ''Roe'' and undercut the federal judiciary's ability to protect abortion rights from state legislation.<ref>{{cite web | url = https://www.conservativedailynews.com/2022/06/roe-v-wade-is-already-dead | title = Roe v. Wade Is Already Dead | first1 = Josh | last1 = Hammer | date= June 5, 2022| access-date = June 15, 2022| work = CDN}}</ref>

=== ''Dobbs v. Jackson Women's Health Organization'' ===
''[[Dobbs v. Jackson Women's Health Organization]]'' is a case that was a legal challenge to Mississippi's 2018 [[Gestational Age Act]], which had banned abortions after 15 weeks with exceptions only for medical emergencies or fetal abnormalities. Federal courts had [[enjoined]] the state from enforcing the law after the state's only abortion clinic, [[Jackson Women's Health Organization]], filed suit immediately after passage; the federal courts stated that the law [[Legal wrong|violated]] the previously established 24-week point of viability. Mississippi asked the Supreme Court to hear the case on June 15, 2020, and the Court [[Procedures of the Supreme Court of the United States#Selection of cases|certified the petition]] on May 17, 2021, limited to the question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."<ref name=perry/> The Court chose not to take up two other questions that Mississippi wanted to bring before the Court.<ref name=perry>{{cite web |url = https://www.heritage.org/sites/default/files/2021-11/LM293.pdf |archive-url = https://web.archive.org/web/20211117072804/https://www.heritage.org/sites/default/files/2021-11/LM293.pdf |url-status = unfit |archive-date = November 17, 2021 |title = ''Dobbs v. Jackson Women's Health Organization'': An Opportunity to Correct a Grave Error |first1 = Sarah Parshall |last1 = Perry |first2= Thomas |last2 = Jipping |id= Legal Memorandum No. 293 |publisher = Edwin Meese III Center for Legal and Judicial Studies |date = November 17, 2021 |page = 16 }}</ref>

On May 2, 2022, ''[[Politico]]'' released a leaked first draft of a majority opinion written by Justice [[Samuel Alito]], which had been circulated among the court in February 2022. Alito's draft wrote, "We hold that ''Roe'' and ''Casey'' must be overruled. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." The release of a draft opinion for a pending case was unprecedented in recent Supreme Court history. The document was not a final decision, and the justices were still able to change their votes. The document was thought to reflect both the justices' [[Supreme Court of the United States#Decision|preliminary voting]] and the outcome of the internal Court procedure for deciding who is assigned to write the majority opinion.<ref name="politico-draft">{{cite web |last1=Gerstein |first1=Josh |last2=Ward |first2=Alexander |date=May 2, 2022 |title=Supreme Court has voted to overturn abortion rights, draft opinion shows |website=[[Politico]] |url=https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 |access-date=May 2, 2022|archive-url=https://web.archive.org/web/20220504032815/https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473|archive-date=May 4, 2022}}</ref><ref>{{cite news |last1=Gerstein |first1=Josh |title=Supreme Court: 10 key passages from Alito's draft opinion, which would overturn Roe v. Wade |url=https://www.politico.com/news/2022/05/02/abortion-draft-supreme-court-opinion-key-passages-00029470 |access-date=May 4, 2022 |publisher=Politico |date=May 2, 2022 |archive-url=https://web.archive.org/web/20220504020150/https://www.politico.com/news/2022/05/02/abortion-draft-supreme-court-opinion-key-passages-00029470 |archive-date=May 4, 2022}}</ref> A press release from the Supreme Court confirmed the leaked document's authenticity, and Chief Justice [[John Roberts]] in a statement described its release as a "betrayal of the confidences of the Court".<ref name="SCPR20220503">{{cite web |title=Press Releases – pr_05-03-22 – Supreme Court of the United States |url=https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_05-03-22|access-date=2022-05-03|website=[[Supreme Court of the United States]]|date=May 3, 2022|first1=John|last1=Roberts}}</ref> The leaked draft regarding the decision sparked [[United States abortion protests (2022–present)|protests]].<ref>{{cite news |date=May 3, 2022|title=Crowds protest at Supreme Court after leak of Roe opinion draft |newspaper=The Washington Post |url=https://www.washingtonpost.com/dc-md-va/2022/05/03/protests-roe-v-wade-supreme-court/ |access-date=June 24, 2022 |issn=0190-8286}}</ref><ref>{{cite news |last=Almasy |first=Steve |date=June 24, 2022 |title=Protests underway in cities from Washington to Los Angeles in wake of Supreme Court abortion decision |url=https://www.cnn.com/2022/06/24/us/supreme-court-roe-v-wade-protests/index.html |access-date=June 25, 2022|publisher=CNN |archive-date=June 25, 2022 |archive-url=https://web.archive.org/web/20220625065025/https://www.cnn.com/2022/06/24/us/supreme-court-roe-v-wade-protests/index.html |url-status=live }}</ref>

On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act, and 5–4 to overrule ''Roe'' and ''Casey''. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that ''Roe'' was "egregiously wrong from the start" and its reasoning "exceptionally weak". It also stated that ''Roe'' has "enflamed debate and deepened division" and that overruling it would "return the issue of abortion to the people's elected representatives".<ref>{{Cite court |date=24 June 2022 |litigants=Dobbs v. Jackson Women's Health Organization |vol= 597 |reporter = U.S. |opinion = ____ |url=https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf |access-date=24 June 2022 }}</ref> The majority opinion relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."<ref name="Breuninger & Mangan 2022">{{cite web |url = https://www.cnbc.com/2022/06/24/roe-v-wade-overturned-by-supreme-court-ending-federal-abortion-rights.html |title = Supreme Court overturns Roe v. Wade, ending 50 years of federal abortion rights |first1=Kevin|last1=Breuninger|first2 = Dan |last2 = Mangan |date = June 24, 2022 |access-date = June 24, 2022 |work = [[CNBC]] |archive-date = June 24, 2022 |archive-url = https://web.archive.org/web/20220624141534/https://www.cnbc.com/2022/06/24/roe-v-wade-overturned-by-supreme-court-ending-federal-abortion-rights.html |url-status = live}}</ref> The reasoning was that "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."<ref name="Thomson-DeVeaux 2022">{{cite web|last=Thomson-DeVeaux|first=Amelia|date=June 24, 2022|url=https://fivethirtyeight.com/features/the-supreme-courts-argument-for-overturning-roe-v-wade/|title=The Supreme Court's Argument For Overturning Roe v. Wade|website=FiveThirtyEight|access-date=June 26, 2022|archive-date=June 25, 2022|archive-url=https://web.archive.org/web/20220625144936/https://fivethirtyeight.com/features/the-supreme-courts-argument-for-overturning-roe-v-wade/|url-status=live}}</ref> Some historians argued that this view is incomplete,<ref name="Thomson-DeVeaux 2022"/> with Leslie J. Reagan saying that Alito "speciously claims" the truth of his assertions.<ref name="Reagan 2022">{{cite web|last=Reagan|first=Leslie J.|date=June 2, 2022|url=https://www.politico.com/news/magazine/2022/06/02/alitos-anti-roe-argument-wrong-00036174|title=What Alito Gets Wrong About the History of Abortion in America|website=Politico|access-date=June 26, 2022|archive-date=June 23, 2022|archive-url=https://web.archive.org/web/20220623133238/https://www.politico.com/news/magazine/2022/06/02/alitos-anti-roe-argument-wrong-00036174|url-status=live}}</ref> In their dissent, Justices [[Stephen Breyer]], [[Elena Kagan]], and [[Sonia Sotomayor]] jointly wrote, "The right ''Roe'' and ''Casey'' recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."<ref name="Sneed 2022">{{cite news|url=https://www.cnn.com/2022/06/24/politics/abortion-ruling-gay-rights-contraceptives/index.html|title=Supreme Court's decision on abortion could open the door to overturn same-sex marriage, contraception and other major rulings|first=Tierney|last=Sneed|date=June 24, 2022|access-date=June 24, 2022|publisher=CNN|archive-date=June 24, 2022|archive-url=https://web.archive.org/web/20220624174858/https://www.cnn.com/2022/06/24/politics/abortion-ruling-gay-rights-contraceptives/index.html|url-status= live}}</ref>