Ending 50 years of federally protected abortion access, the U.S. Supreme Court ruled June 6-3 to overturn Roe v. Wade, giving states back the power to set their own laws.
“The Constitution makes no express reference to the right to obtain an abortion…” the June 24 ruling said. “We are thus returning the power to weigh these arguments to the people and their elected representatives.”
The final decision closely mirrored the draft leaked to Politico in May.
The Mississippi law at the center of the decision prohibited abortion after 15 weeks, except to protect the life of the woman, or if there was “a serious risk of substantial and irreversible impairment of a major bodily function”.
Justice Samuel Alito delivered the majority opinion joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts agreed with the judgment that the Mississippi law should stand, but in a separate opinion he said that by striking down Roe v. Wade, the court went further than necessary. The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
We verified several key statements in the final decision.
In Mississippi, “in support of this law, the legislator made a series of factual findings. He began by noting that at the time of enactment, only six countries, besides the United States, “allow[ted] non-therapeutic or elective abortion on demand after the twentieth week of gestation.'”
This is partially correct.
In a footnote, Alito listed Canada, China, the Netherlands, North Korea, Singapore and Vietnam, then, citing the work of the Center for Reproductive Rights, added Iceland and Guinea-Bissau. But the center’s latest count finds a dozen countries in that group.
Moreover, defining what constitutes an elective non-therapeutic abortion is complicated. Many European countries, for example, have broad exceptions that allow abortions after the 20th week to protect the well-being of the mother. This group includes Germany, Great Britain, Norway, Ukraine, Spain and many others.
When Senator Lindsey Graham, RS.C., made a similar claim, we rated it as half true.
“In Roe’s time, 30 states still banned abortion at all stages. … By the time the Fourteenth Amendment was passed, more than three-quarters of states had passed laws criminalizing abortion (generally at all stages of pregnancy).
This story lacks significant context and is refuted by at least one legal review.
Among other changes, the 14th Amendment stated that no state shall “deprive any person of life, liberty, or property, without due process.” It is a powerful protection, and it has been linked to the right to abortion.
Alito’s statement that when the 14th Amendment was ratified in 1868, more than three-quarters of states had criminalized abortion (generally at all stages of pregnancy) is disputed by a University of California to Davis.
In a December 2021 article, Aaron Tang wrote that at the time of ratification, “21 of 37 states continued to recognize the very pre-accelerated abortion rights that were universally embraced at the founding.” Quickening was the term used to describe the feeling of a woman’s fetal movement in her womb. This applies roughly to the 15th or 16th week of pregnancy.
That said, Tang also wrote that in 1868, 31 of 37 states had laws “punishing abortion in one form or another.” Historians contacted by PolitiFact in February said Alito’s numbers were largely correct, although by the time the 14th Amendment was ratified in 1868, doctors had been pushing for more than a decade to criminalize the abortion as part of a campaign to professionalize medicine.
“The doctors’ targets were midwives and other unauthorized people,” Peter Hoffer, a history professor at the University of Georgia, told us. “It was necessary to protect women’s health, because abortion at the time was not a particularly safe procedure.”
Early abortions were common, University of Illinois historian Leslie Reagan told PolitiFact. Abortion bans could have been on the books, but they were largely ignored.
“They were prosecuted when women died,” Reagan said. “In the rare cases of prosecutions where no one died, juries usually struck down the law and refused to convict for the abortion itself.”
There have also been times when families have sued abortionists for damages and won, Reagan said.
“It should be noted that the percentage of women who register to vote and vote is consistently higher than the percentage of men who do.”
Alito is correct that American women vote at higher rates than men, which has been the trend over the past few decades.
He cited women’s higher turnout rates to argue that women “on both sides of the abortion issue” can influence the state’s legislative process by voting. In 2021, the trend in states was to enact more restrictions on abortion.
In 2020, the share of female voters was 68% and that of male voters was 65%, according to a Census Bureau survey. The researchers cite a variety of reasons, including that women “are more likely to rely on government services and are often more directly affected by highly debated issues like reproductive rights, childcare/family leave, among others.” , Kelly Dittmar, a political scientist at Rutgers University, told PolitiFact in September.
Reacting to the draft notice leaked at the time, Julie A. Wronski, an associate professor of political science at the University of Mississippi, said the argument lacked context, however: “The context is that the types of women voting in the lean (Mississippi) Republican, and attitudes toward abortion are polarized by party identity.
The due process clause of the 14th Amendment “has been held to guarantee certain rights which are not mentioned in the Constitution, but any such right must be ‘deeply rooted in the history and tradition of this nation'”.
Alito quoted Washington v. Glucksberg, a 1997 U.S. Supreme Court decision that found that a state is permitted under the 14th Amendment to pass a law prohibiting assisted suicide.
The Washington State decision stated in part: “First, the court has consistently observed that the clause specifically protects fundamental rights and freedoms that are, objectively, deeply rooted in the history and tradition of this nation. … An examination of our nation’s history, traditions and practices demonstrates that Anglo-American common law has punished or frowned upon assisted suicide for over 700 years.”
But Alito’s opinion ignored that the court hasn’t always been entitled to that standard since the Glucksberg case, said Evan D. Bernick, a law professor at the Northern Illinois University College of Law and 14th Amendment expert. . In Obergefell v. Hodges’ same-sex marriage case decided in 2015, the court did not apply the Glucksberg test, he said.
In the ruling in the same-sex marriage case, Judge Anthony Kennedy ruled by majority that some past marriage cases — like Loving v. Virginia, who ruled that laws banning interracial marriage were unconstitutional — did not rely on past historical preferences.
“Loving did not ask about a ‘right to interracial marriage,'” Kennedy wrote. “Rather, each case inquired about the right to marry in its overall sense, asking whether there was sufficient justification to exclude the relevant class from the right.”
“It is indisputable” that the legalization of abortion has reduced the size of the black population. “A very disproportionate percentage of aborted fetuses are black.”
Alito pointed to data from the US Centers for Disease Control and Prevention for 2019. It showed that 38% of women who had abortions were black, 33% white, 21% Hispanic and 7% from other races or ethnicities.
Data is reported voluntarily by providers to state or local health departments, and therefore information may be incomplete and result in underreporting of abortions, the Kaiser Family Foundation notes. Data excludes 23 reporting areas (states plus New York City) that did not report, did not report by race/ethnicity, or did not meet reporting standards.
Alito’s statement lacks context on why there are racial differences in abortion rates. Susan Cohen, former vice president of the Guttmacher Institute, an organization that supports abortion rights, wrote in 2008 that anti-abortion activists have singled out racial data “by falsely claiming that the disparity is the result of aggressive marketing by abortion providers to minorities”. communities. »
Cohen wrote that the variation in abortion rates between racial and ethnic groups is related “to the variation in unintended pregnancy rates between those same groups”.
The National Black Women’s Reproductive Justice Agenda, a national group that supports reproductive rights, said black women are more likely to lack access to comprehensive sex education and contraception, and “as a result, they experience higher rates unintended pregnancies higher than women of any other ethnic or racial group.
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