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Roe v. Wade decision: Answering abortion, SCOTUS questions

The Supreme Court struck down the constitutional right to abortion. The VERIFY team answers questions about what that means.

On June 24, the Supreme Court upheld Roe v. Wade and ended constitutional abortion rights.

Since the court announced its verdict, VERIFY viewers and online users have asked questions about what the court’s decision means for those seeking an abortion. The VERIFY team has answered many of these questions below.

Do you have a question about the BGH ruling? Email us at questions@verifythis.com or message @verifythis on social media.

THE SOURCES

BRIEF INFORMATION

  • The Supreme Court decision does not ban abortion nationwide. Instead, states can choose to ban, restrict, or allow them.
  • Congress could pass legislation replacing a Supreme Court ruling like this, but the court could in turn declare such legislation unconstitutional.
  • The court’s three most recent Conservative appointments – Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh – did not say during the confirmation hearings that they would accept Roe v. Wade would not fall.
  • Roe last came across a case called Dobbs v. Jackson Women’s Health Organization in the Supreme Court challenging a Mississippi ban on abortion.

WHAT WE KNOW

Abortion is not illegal in all states after the Supreme Court ruled Roe v. Wade lifted

Although some states enact abortion bans, not all states make abortion illegal after the Supreme Court Roe v. Wade lifted. States can still enact their own abortion laws to either limit or guarantee abortion rights.

RELATED: No, abortion isn’t illegal in all states now that Roe v. Wade was lifted

In his 1973 judgment in Roe v. Wade, the Supreme Court found that a fundamental right to privacy is contained in the due process clause of the Fourteenth Amendment and that a person’s right to choose an abortion falls under the right to privacy.

The court’s 1973 decision made it illegal for states to regulate abortion during the first trimester of pregnancy. In the second trimester, states could impose some regulations on abortion that “have a reasonable relation to the health of the mother.” Once the fetus has reached the point of “viability” in the third trimester, or the point at which it could survive outside the womb with medical support, a state could regulate or ban abortion “so long as the laws contain exceptions for cases where Abortions are necessary to save the life or health of the mother.”

In the June 24, 2022 decision of Dobbs v. Jackson Women’s Health Organization, Supreme Court Justice Samuel Alito wrote in the majority opinion that “there is no reference to abortion in the Constitution and no such right is implicitly protected by any constitutional provision,” including the Fourteenth Amendment.

“We therefore believe that the constitution does not grant a right to abortion. Roe and Casey must be overridden and authority to regulate abortion returned to the people and their elected officials,” Alito wrote.

Now that Roe v. Wade was repealed, the right to a first-trimester abortion is no longer protected federally. But that doesn’t mean abortion is illegal in all of the United States. State legislatures may choose to ban, restrict or protect abortion under the new rule.

RELATED: No, Tennessee hasn’t banned the Plan B emergency contraceptive

Congress can pass legislation that protects abortion nationwide, but the Supreme Court could override it

In a public address on June 24, President Joe Biden called on Congress to pass legislation protecting abortion rights nationwide. But can the legislature do that?

Yes, Congress could pass legislation replacing a Supreme Court ruling, but the Supreme Court could rule it unconstitutional.

RELATED: Yes, Congress could pass federal law replacing a Supreme Court ruling

Professor Casey Burgat of George Washington University told VERIFY: “Federal law is the best and most legitimate means of codifying the Roe v Wade principles. It’s not bulletproof because a future Supreme Court case could render the new law unconstitutional, but it’s by far the most viable strategy for making abortion legal in all U.S. states.”

Legislatures last year introduced legislation protecting Roe v. Wade, which has not yet come into force. The Women’s Health Protection Act of 2021 was first introduced in the House in June 2021. In September 2021, the bill passed at House 218-211. On February 28, the Senate voted against introducing the bill.

Doron Kalir, clinical law professor at Cleveland-Marshall College of Law, said if the Women’s Health Protection Act passed the Senate and was signed into law by President Biden, it would likely be immediately challenged in lower courts and could find its way back before the Supreme Court within weeks.

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Three Supreme Court justices didn’t say they ruled Roe v. Wade would not fall during their confirmation hearings

Supreme Court Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh did not say they would choose Roe v. Wade would not fall during their confirmation hearings. as some have claimed online.

RELATED: No, Justices Barrett, Gorsuch, and Kavanaugh didn’t say they wanted Roe v. Wade would not fall during the confirmation hearings

During their confirmation hearings, Gorsuch and Kavanaugh spoke about the importance of Roe as a legal precedent that has been repeatedly confirmed over the years. But they didn’t say they wouldn’t reverse the landmark decision.

Kavanaugh and Gorsuch both said that if the topic of Roe came up during their time on the bench, they would listen to all the arguments before making a decision.

During Barrett’s confirmation hearing, senators repeatedly asked her about Roe. She declined to talk about how she might rule on a case that had yet to go to court, while acknowledging Roe’s precedent.

Barrett said she would not “pre-commit to approach a case in any particular way,” later adding that Roe “stated unequivocally that the Constitution protects a woman’s right to an abortion.”

In the decision released June 24, Gorsuch, Kavanaugh and Barrett joined Judge Alito in the court’s opinion to overthrow Roe. Kavanaugh also submitted an affirmative opinion.

RELATED: No, health data from most period-tracking apps isn’t protected by HIPAA

What is the Women’s Health Organization of Dobbs v. Jackson?

In December 2021, the US Supreme Court heard hearings in Dobbs v. Jackson’s Women’s Health Organization (JWHO), a case challenging the constitutionality of a Mississippi law banning abortions after 15 weeks.

The case has been playing out in Mississippi courtrooms since 2018, when the state enacted the Gestational Age Act. This law prohibits abortions after 15 weeks of pregnancy, except in the case of medical emergencies or cases of severe fetal abnormalities. The JWHO, the only provider of abortions in the state, performed them up to 16 weeks gestation. On the same day the law went into effect, a doctor sued the state.

The JWHO claimed the law was unconstitutional and violated precedent established by Roe v. Wade and by Planned Parenthood of Southeastern Pennsylvania against Casey in 1992.

Judge Alito, who wrote the majority opinion for the Dobbs court, said the two cases had been wrongly decided and should be overturned.

“We therefore believe that the constitution does not grant a right to abortion. Roe and Casey must be overridden and authority to regulate abortion returned to the people and their elected officials,” Alito wrote.

Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan disagreed.

“With regret – for this court, but even more so for the tens of millions of American women who have lost basic constitutional protections today – we disagree,” they wrote, warning that anti-abortion advocates are now pursuing a nationwide ban “from the moment of conception.” could and without exceptions for rape or incest.”

A copy of the court decision was leaked in May and published by Politico. Important passages in Alito’s draft opinion and the final judgment are identical, including harsh denunciations of the Roe judgment as “enormously wrong”, with “extraordinarily weak” reasoning and “harmful consequences”. The major additions to the final copy are harsh critiques of the dissenting opinion and a concurring opinion from Chief Justice John Roberts.

RELATED: No, Roe v.’s leaked draft opinion Wade wasn’t the first leaked Supreme Court decision

The Associated Press contributed to this report.

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