Inside the Supreme Court decision that overturns abortion rights

The Supreme Court’s decision to overturn abortion law in the U.S. rocked the nation, but the court’s conservative majority wasn’t unanimous. Marcia Coyle of The National Law Journal explains how Chief Justice Roberts responded to the decision and how the liberal dissent argues against creating a patchwork of laws across the nation.

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  • Judy Woodruff:

    To unpack today's Supreme Court opinion, including its conservative majority and the liberal dissent, we turn now to Marcia Coyle of "The National Law Journal."

    Welcome back to the program, Marcia. This is a big one.

    Put this in context, though. In the pantheon of major Supreme Court decisions, where does this one fit?

    Marcia Coyle, "The National Law Journal": This is huge. It's been — I can't even remember when the Supreme Court last revoked a right that an American citizen held.

    And so this one was nearly 50 years old, had also been reaffirmed multiple times.

  • Judy Woodruff:

    And rolling the clock back, essentially. Is that right?

  • Marcia Coyle:

    Absolutely. It does.

    It's going to be — there will be a patchwork of laws around the nation, either having abortion legal or illegal. Will we see some of the deaths and injuries that occurred pre-Roe, when desperate women may have gone to back-alley-type abortions? I don't know. It will depend on how some of these abortion laws are structured.

  • Judy Woodruff:

    We did have an inkling this was coming, the leaked draft opinion written by Justice Alito that came out in May.

    And we see some of that same language in this opinion. I want to quote from part of today's decision.

  • And I’m quoting:

    "We hold that Roe and Casey must be overruled. 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. 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 the right to abortion does not fall within this category."

    So, explain what the justice, Justice Alito, was getting at there.

  • Marcia Coyle:

    Judy, the conservative majority on this court approaches the Constitution by — and constitutional rights by looking at the text of the Constitution, tradition and history.

    There are many respected American historians who disagree and also challenge the ability of the court and judges in general to do the kind of historical research that is required to reach these kinds of conclusions.

    But, be that as it may, the court did — the majority did do that analysis and found that, as I said, abortion did not fall in that category.

  • Judy Woodruff:

    So, Marcia, as we see the chief justice, John Roberts, he does sign on to the majority opinion, but he also writes a separate concurring opinion, saying the court erred, in his words, by completely overruling Roe and Casey.

    And I'm just quoting from what he wrote.

    He said: "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Surely, we should adhere closely to principles of judicial restraint here, where the broader path the courts uses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed, applying the doctrine of stare decisis.

    So, what is — do you see justice — the chief justice saying?

  • Marcia Coyle:

    He wanted to only deal with the line that Roe and Casey drew about abortion bans, that you could not ban abortion before viability. That is at 22 to 24 weeks. He felt that that was not a clearly justified line.

    He is concerned about the court's legitimacy in making this ruling at this time. And he agreed with that part of the Alito majority opinion that did get rid of the viability line, but he would not, as you said, go so far as to overrule the entire Roe and Casey decisions.

  • Judy Woodruff:

    And, Marcia, as we know, there was a strongly worded dissent by the three liberal justices.

    Here is what — part of what they wrote in today's opinion, that: "As a matter of constitutional substance, the majority's opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves states doing so today. Today's decision strips women of agency over what even the majority agrees is a contested and contestable moral issue.

    "It forces her to carry out the state's will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the 14th Amendment's terms, it takes away her liberty."

  • Marcia Coyle:

    Well, Judy, the dissent had a lot of problems, obviously, with the majority opinion, first the history.

    The point Justice Breyer, Kagan and Sotomayor made very clearly was that the history that the majority relied upon, the laws at the time that they looked at were all made by men. Women at the time did not have rights, basically any rights at all. So that was one flaw.

    The other flaw, very important flaw, they felt, was that the majority failed to stand by old precedents, and that's known as stare decisis. The dissent felt the majority did not properly apply the factors that the court has generally applied when determining whether to overrule an earlier precedent, factors like reliance and workability.

    And so I think those were the two main takeaways. One other thing I would add about the majority opinion, Judy, that I think is kind of important is that, going forward, how will courts judge abortion regulations and restrictions? And the majority opinion says that all a state has to do is justify that regulation on — by a rational, reasonable basis.

    And that is considered the easiest form of constitutional scrutiny.

  • Judy Woodruff:

    So what does that mean for these state courts?

  • Marcia Coyle:

    It means it state and federal courts will be probably upholding many more abortion regulations and restrictions than they have done in the past.

  • Judy Woodruff:

    Marcia Coyle beginning to digest this most historic and significant decision handed down today by the Supreme Court.

    Marcia, thank you.

  • Marcia Coyle:

    My pleasure Judy.

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