By Laura Temme, Esq. | Legally reviewed by Bridget Molitor, J.D. | Last reviewed March 24, 2023
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The Supreme Court cannot return to the same case and change its mind. And the legal doctrine of stare decisis — Latin for "let the decision stand"— means later court members are often reluctant to explicitly overturn prior rulings. However, the principle of stare decisis is not legally binding or uniformly enforced. Recent cases on reproductive rights that chipped away at the rights recognized in Roe illustrate this fact. In the past, a complete overturn of Roe v. Wade seemed unlikely. But abortion rights can change through subsequent decisions, even without a complete overturn. That's why so many states have continued to pass laws contradicting Roe. One such challenge out of Mississippi made it to the Supreme Court in 2022, leading to the shocking overturn of Roe v. Wade.
Roe v. Wade was upheld in two prominent cases: Planned Parenthood v. Casey and Whole Women's Health v. Herllerstedt. And most recently, in 2020, the Supreme Court decided June Medical Services v. Gee, a Louisiana case that examined a similar law to that of Whole Women's Health.
In 1992, the court in Planned Parenthood v. Casey affirmed the abortion right established by Roe and the states' right to restrict abortions after a certain point in pregnancy. The justices found that while states have a "legitimate interest" in ensuring abortion services are safe, they cannot place a "substantial obstacle" in the path of someone seeking those services.
The court also reinforced the idea that "the ability of women to participate equally in the economic and social life" of the United States has been increased by the ability to control their reproductive lives established in Roe.
In 2016, the Supreme Court again left Roe in place when it decided Whole Woman's Health v. Hellerstedt. In this case, a Texas abortion statute required doctors who provided abortions to have "admitting privileges" at a hospital no more than 30 miles away from the clinic. In other words, they needed to be able to have their patients admitted to the hospital without approval from another doctor. The law also required abortion clinics to meet the same standards as same-day surgery centers.
After the admitting privileges requirement went into effect, the number of facilities able to provide abortion services in the state dropped from around 40 - to around 20.
The Supreme Court found that both provisions of the Texas law at issue placed "substantial obstacles" in the way of women seeking an abortion. And therefore, they violated the Constitution.
The Supreme Court's most recent decision relied heavily on Whole Women's Health since June Medical Services v. Gee also challenged an admitting privileges requirement for abortion providers. In a 5-4 decision, Chief Justice John Roberts (generally considered a "conservative" justice) joined the four "liberal" justices on the Court to strike down the Louisiana statute. As they did in 2016, the majority observed that abortion is one of the safest medical procedures available today. And if Louisiana's admitting privileges rule took effect, only one doctor and one clinic in the entire state would have been able to offer abortions.
Two significant abortion rights cases arose during the Supreme Court's 2021-2022 term. The Court made a preliminary ruling on Whole Woman's Health v. Jackson in September 2021. This is the case connected to the restrictive abortion statute out of Texas known as Senate Bill 8 (SB8). The justices also agreed to take up Dobbs v. Jackson's Women's Health, a case arising from a Mississippi abortion statute.
SB8 bans abortions after a fetal heartbeat can be detected - in most cases, around six weeks. The law is unique because government officials cannot enforce it. Instead, it allows private citizens to sue medical providers they believe violate the statute. This unique provision has been interpreted as a tactic to avoid judicial review.
In September 2021, the Supreme Court denied an injunction requested by the abortion provider to prevent SB8 from taking effect. On the surface, this decision seemed to signal that the Court was at least willing to consider overturning Roe. Similar abortion bans had been quickly struck down in the past, making this decision issued through the court's administrative "shadow docket" alarming to many pro-choice advocates.
However, a denial of injunctive relief is different from a decision on the merits of the case. Essentially, the Court ruled that it could not grant an injunction because of the statute's unique enforcement requirements. The plaintiffs could not show that, without an injunction, they would be "irreparably injured" because it was unclear whether the named defendants (who were government officials) could actually enforce the law.
Mississippi's Gestational Age Act banned abortions after 15 weeks, well before the viability standard set by Roe v. Wade. What made this case different from previous challenges is that the state explicitly asked the Court to overturn both Roe and Planned Parenthood v. Casey.
The state's only abortion clinic argued that the Constitution supports the fundamental right to "body integrity and personal autonomy in matters of family, medical care, and faith." Historically, thanks to Roe v. Wade, this has included abortion rights.
But Mississippi argued that stare decisis should not stop the Supreme Court from overturning Roe. In the state's view, the Roe v. Wade decision has been controversial from the beginning and, therefore, cannot be reasonably relied on as established law. Moreover, the state alleges that stare decisis is at its weakest in this case because it deals with Constitutional interpretation.
The clinic argued that the justices shouldn't have considered the issue of overturning Roe because the state did not include this argument in its original petition to the Supreme Court.
On May 2, 2022, Politico released what appeared to be a leaked draft opinion for Dobbs by Justice Samuel Alito, striking down both Roe and Casey. The draft argued that "Roe was egregiously wrong from the start" and must be overturned. Then, on June 24, the Supreme Court released its official opinion where the justices voted 6-3 to overturn Roe v. Wade. The official opinion appeared to be largely the same as Justice Alito's draft.
Before 1973, abortion laws across the country varied widely. Some states had banned all abortions, while others had legalized them in certain circumstances. In determining that a Texas abortion statute violated the Constitution, Roe v. Wade established a legal framework for abortion regulations at the federal level. So, without Roe, it is once again up to the states to decide how to regulate abortion.
Thirteen states had "trigger laws" that immediately banned abortion with the overturning of Roe: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.
In Alaska, Colorado, New Jersey, New Mexico, Oregon, Vermont, and the District of Columbia, abortion is legal at all stages of pregnancy. Abortion would be legal pre-viability in 18 states, although some impose restrictions such as waiting periods. Those states include:
Six states have abortion bans that they haven't enforced since the 1973 decision - but they could start enforcing them again in the absence of Roe:
A handful of states, including Florida and Georgia, passed restrictions post-Roe that were unenforceable before the decision was overturned. Others have expressed an intent to restrict abortion to the maximum extent permitted by any new Supreme Court rulings on the subject. It's unclear whether proposed state laws, such as those that would restrict a pregnant person from traveling to another state to obtain an abortion, will withstand a constitutional challenge.
All of this to say: Now that the Supreme Court has overturned Roe, abortion regulation in the United States is even more complicated than it was before.
Many people became especially concerned about the fate of Roe v. Wade when Congress confirmed Justice Brett Kavanaugh to the Supreme Court in 2018. On the surface, Kavanaugh's confirmation shifted the Court's political makeup more to the conservative side. President Donald Trump repeatedly said he nominated Kavanaugh because he thought he would overturn Roe. But, statements by Kavanaugh initially suggested otherwise.
During his confirmation hearings, Justice Kavanaugh told Senator Susan Collins that the Supreme Court's decisions "become part of our legal framework with the passage of time." He also said honoring prior Supreme Court decisions is essential to maintaining public confidence in the Court.
Anxiety over Roe v. Wade increased even more with the passing of Justice Ruth Bader Ginsburg in September 2020. Many pro-choice advocates worried that filling Ginsburg's seat with the much more conservative Justice Amy Coney Barrett put abortion rights in grave danger. And indeed, Justice Barrett has a complicated history when it comes to abortion rights and stare decisis.
However, it is difficult to predict how any individual justice will side on a case, for example, when Chief Justice Roberts joined the majority to overturn abortion restrictions in June Medical Services. Or when Justice Neil Gorsuch not only agreed that Title VII protects gay and transgender individuals from discrimination, he wrote the opinion for the Court.
Other conservatives tried to undermine Roe v. Wade for decades by nominating Supreme Court justices they thought might disagree with it. But for many years, Roe withstood these challenges. For example, Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy were all nominated by Republican presidents. And all three voted to uphold Roe in Planned Parenthood v. Casey. However, it seems Dobbs v. Jackson Women's Health was the case the court's conservatives were waiting for.
To answer this question, first, we have to look at the Supreme Court's history. The Constitution established the Supreme Court but didn't explicitly grant the power to determine whether state and federal laws are constitutional. That power came in 1803 when the Supreme Court decided Marbury v. Madison. Marbury was the first time the Supreme Court found an act of Congress violated the Constitution.
Ever since, it's been up to the Supreme Court to decide what federal law is or isn't constitutional.
Can the Supreme Court get things wrong? Sure. Several decisions from the Court's early history would not hold up in today's society. But the Supreme Court generally doesn't invalidate its own decisions - it just makes new ones. However, the Mississippi abortion statute presented the conservative justices on the court with a unique opportunity to overturn precedent. It remains to be seen how this decision will affect public opinion of the court, given that recent polls show that 80% of Americans support the right to abortion in at least some circumstances.
Abortion regulation in the United States is by no means settled, especially with the overturning of Roe v. Wade. Those opposed to abortion will continue to challenge constitutional privacy rights, and some of those challenges will find their way to the Supreme Court. New legislation based on the Ninth Amendment could put privacy rights (including abortion) on a stronger foundation. However, in the meantime, it's unclear how the decision in Dobbs will affect other privacy rights, such as those related to birth control and sex.
FindLaw's Federal Courts blog provides up-to-date coverage on new cases headed for the Supreme Court, as well as the Court's decisions.