The Freedom From Religion Foundation condemns in strongest terms the devastating decision today by the Supreme Court’s ultraconservative supermajority to dismantle the fundamental right to an abortion, noting the result will be untold harm. Abortion rights are expected to fall or be rolled back immediately in about half the states.
The decision was 5-4 to effectively overturn Roe v. Wade, which has been on the books for 49 years. Chief Justice John Roberts wrote a concurrence stating he would have limited the decision to upholding the 15-week ban, making the judgment to uphold the Mississippi state law 6-3. The majority decision closely tracks the draft written by Justice Samuel Alito, Jr., which was leaked on May 2, and created shockwaves, setting off weeks of protests around the nation.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a scathing joint dissenting opinion. They write:
“For half a century Roe v. Wade and Planned Parenthood v. Casey have protected the liberty and equality of women. . . . that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. . . . The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice for this most personal and most consequential of all life decisions.”
The dissent continues, “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
"With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent," they conclude.
With this decision, abortion care for millions of people is being pushed even further out of reach. Thirteen states have trigger laws to ban abortions expected to take almost immediate effect, and some other states have pre-Roe criminal bans also going into effect. More than 600,000 abortions have been performed annually in the United States under Roe, with more than 1 in 4 women terminating pregnancies during their lifetime.
The Supreme Court’s decision will embolden theocratic politicians to push for total bans on the procedure. As FFRF noted in its amicus brief to the Supreme Court in this case, religion has always been at the heart of anti-abortion legislation and it was no different in the Mississippi ban at hand. This is exposed by various highly sectarian religious statements that Mississippi legislators made in support of House Bill 1510, such as: “I believe that life is precious and children are a gift from God” and “I am not God, but I serve a God who says life is in the blood. And this bill will protect those lives.”
The majority opinion disingenuously denies a religious agenda, claiming, "Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin."
Yet every signer to the majority decision was raised Roman Catholic (with Justice Neil Gorsuch now identifying as Episcopalian). Dissenters Kagan and Breyer identify as Jewish, and Sotomayor is a liberal Catholic, more representative of the majority viewpoint of today’s American Catholic laypeople, who overwhelmingly support at least some abortion rights and are far more liberal than their church.
The opinion ignores the constitutional principle of separation between state and church and continues the trend of privileging religious persons and their beliefs over the rights of all others. The ideas and reasonings put forth are not foreign to us at the state/church separation watchdog. History and tradition have been used to condone prayers at legislative bodies and to uphold government-sponsored religious displays on public property.
“Roe was egregiously wrong from the start,” Alito writes, saying the significant subsequent rulings reaffirming Roe “must be overruled” because they too were “egregiously wrong.” Shockingly, Alito even charges that the arguments used in the 7-2 1973 Roe v. Wade decision and subsequent rulings amounted to “an abuse of judicial authority.”
He adds: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The final opinion repeats the highly-criticized language of the leaked draft, in which Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision… including the Due Process Clause of the Fourteenth Amendment.”
“Alito claims abortion isn’t among the enumerated rights in the U.S. Constitution, therefore it’s not a right at all — it’s to be left to the whim of whatever legislature happens to run your state — and two-thirds of those legislators, by the way, are male,” comments FFRF Co-President Annie Laurie Gaylor. “Such reproductive tyranny is suitable for a totalitarian state — or a theocracy.”
Alito spends merely a few paragraphs evaluating the Mississippi state law, the Gestational Age Act, which bans abortion at 15 weeks. He determines the state’s interests in “protecting the life of the unborn,” and the legislature’s findings that the medical procedures used after 15 weeks are “barbaric” and “dangerous” to the woman and “demeaning to the medical profession” are legitimate and form a rational basis for the law. Therefore, the state law is constitutional and upheld. Challenges to all other abortion bans now face a formidable obstacle.
Since Roberts has been chief justice, over 20 cases have overturned precedent. This case should be seen as yet another warning that any civil right is potentially on the chopping block.
It would be naive and wrong to think that the ultraconservative justices are going to stop there: the constitutional right to birth control (Griswold v. Connecticut), right to same-sex marriage (Obergefell v. Hodges), right to sexual intimacy (Lawrence v. Texas), and even the right to interracial marriage (Loving v. Virginia), are all threatened by today’s decision. Justice Thomas wrote a concurring opinion saying as much, “... in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Interestingly, Thomas, an African-American married to a white woman, omits reference to Loving, which is predicated on the same right to privacy. He ended his concurrence writing, “... substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” None of these rights, whose historical opposition has always been rooted in religion, is mentioned explicitly in the Constitution and all of them have a considerable history of being outlawed in this country.
As the dissenting justices warn: “No one should be confident that this majority is done with its work.”
“For the first time ever, the Supreme Court has taken away a constitutional right,” comments FFRF Legal Director Rebecca Markert. “Today's decision is not only an affront to women's rights, but also a direct attack on the separation of state and church. This ultraconservative majority will not stop here, they will work, as Justice Thomas threatens in his concurrence, ‘at the earliest opportunity’ to impose their religious beliefs on us all by next eliminating the right to contraception, right to marry, and love whom we choose."
The Freedom From Religion Foundation is urging five constructive acts of resistance. The first: to demand that the U.S. Senate finally pass the Women’s Health Protection Act, which would codify and protect the rights in Roe v. Wade. The second: to vote and collectively to mobilize the secular vote. The third: to demonstrate in the streets (peacefully), via social media and collectively make the biggest, loudest fuss so that the courts, candidates and public officials know we won’t tolerate losing this fundamental right and seeing a religious minority impose compulsory pregnancy. The fourth: to support critically needed abortion funds, as FFRF itself does, such as the all-volunteer Wisconsin Women’s Medical Fund. Finally, we must continue to demand court reform, because our extremist-captured Supreme Court has lost its legitimacy.
The Freedom From Religion Foundation is a national nonprofit organization with more than 36,000 members across the country. FFRF protects the constitutional separation between state and church and educates about nontheism.