Roe v. Wade: What to know about the now-overturned abortion ruling, and what's next for Arizona
PHOENIX - A U.S. Supreme Court ruling released on June 24, 2022 has overturned a landmark ruling in the 1970s that paved the way for legalized abortions, in certain cases, across the country.
News of the court's decision to overturn Roe v. Wade came just over a month after the leaking of a draft opinion that shows a desire by the justices to overturn Roe, along with a 1992 ruling called Planned Parenthood v. Casey.
Here's what you should know about the now-overturned Roe v. Wade ruling.
What is Roe v. Wade?
According to Cornell Law School's Legal Information Institute, the case that led to the Roe v. Wade ruling involved a pregnant single woman, named then only as Jane Roe, who brought a class-action lawsuit to challenge the constitutionality of criminal abortion laws in Texas.
The woman, subsequently identified as Norma McCorvey, died in 2017.
According to an Associated Press article published at the time of her death, McCorvey was 22 when she sought to have an abortion in Texas in 1969. At the time, McCorvey was on her third pregnancy. She was also unmarried and unemployed at the time.
At the time McCorvey sought an abortion, Texas law criminalized abortions, except in cases to save a woman's life.
According to a 2020 AP article, McCorvey gave birth to her third child, whom she put up for adoption prior to the Roe v. Wade ruling.
The real identity of Jane Roe was not known until the 1980s – when McCorvey revealed herself.
What did the Roe v. Wade ruling say about abortion?
According to Encyclopedia Britannica's entry on the ruling, the court ruled that Texas laws criminalizing abortion in most instances violated a woman's constitutional right to privacy, which it found to be implicit in the liberty guarantee of the 14th Amendment to the U.S. Constitution.
The court, at the same time, disagreed with McCorvey's assertion that there is an absolute right to terminate pregnancy in any way and at any time.
What led to the ruling that overturned Roe?
In July 2021, the Attorney General of Mississippi, Republican Lynn Fitch, argued that the Supreme Court should overturn Roe v. Wade.
"Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion," Fitch, along with four of her attorneys, wrote in a brief.
In December 2021, the Supreme Court heard arguments over Mississippi's anti-abortion law, which bans abortion after 15 weeks of pregnancy. In that case, the justices were asked to not only overturn Roe v. Wade, but also the 1992 Planned Parenthood v. Casey decision that affirmed Roe v. Wade.
During arguments for that case, all six conservative justices signaled that they would uphold the Mississippi law, and five asked questions that suggested that overruling Roe and Casey was a possibility.
I've heard somewhere that the Supreme Court does not overturn its rulings…
According to the Cornell Law School's Legal Information Institute, a legal doctrine called stare decisis, which means 'to stand by things decided' in Latin, does exist.
Under the legal doctrine, a court will make its decision in alignment with the previous court's decision, if a previous court has ruled on the same or a closely related issue.
The LII website states that the Supreme Court previously described the rationale behind stare decisis as "promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process."
However, the LII website states that the Supreme Court has also said in the past that stare decisis is not an "inexorable command."
There have been a number of Supreme Court rulings that do not follow the doctrine of stare decisis. Such rulings include the Brown v. Board of Education, which reversed a Supreme Court ruling in the late 1800s regarding segregation, and led to the end of segregated schools. Another ruling that did not follow the stare decisis doctrine is Lawrence v. Texas, where the Supreme Court overturned its own ruling on same-sex sexual relations that was made in 1986.
Why are conservatives opposed to Roe?
In an article published on the United States Conference of Catholic Bishops website, Susan E. Wills argues that in the Roe v. Wade decision, the Supreme Court, among other things, exceeded its constitutional authority, misrepresented the history of abortion and attitudes towards it, and assigned a right to privacy in abortion that has no foundation in the text or history of the U.S. constitution.
According to Pew Research Center, a number of Christian faiths, including the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and the Southern Baptist Convention, oppose abortion rights with few or no exceptions.
Nationally, the Republican Party is known for its oppositional stance to abortion, with the party adopting a pro-life stance in its 2016 platform.
Did officials enact abortion restrictions prior to Roe's overturning?
Prior to recent events, the federal government, along with a number of states have enacted anti-abortion measures.
According to Planned Parenthood, the federal government withholds Medicaid funding from abortion, with narrow exceptions, and in 2007, the U.S. Supreme Court upheld a federal law that banned abortion procedures in the second trimester of pregnancy.
Various states have also enacted abortion restrictions. Besides Mississippi, Arizona, and Texas have passed measures that banned abortions at 15 weeks and around six weeks (once a heartbeat is detected), respectively. Oklahoma even enacted a law that makes it a felony to perform an abortion, except to save a mother's life. Those who violate Oklahoma's law can be imprisoned for up to 10 years.
Where does Arizona stand in terms of abortion laws?
It has been noted by the AP that Arizona has competing laws that either completely ban the procedure or limit it to 15 weeks after a woman becomes pregnant.
Citing ARS 13-3603, some Republicans in the Arizona State Senate believe the pre-Roe law is enforceable.
"The 1901 law is directed at someone who does supply provide or administer those drugs or medicine with the intent to induce a miscarriage, so it’s not directed at the pregnant woman herself," said Emily Ward with law firm Fennemore Craig.
Under ARS 13-3603, the only exception to the ban is for abortions that are necessary to save a woman's life.
"It is on the books. It is a current law," said Ward. "That being said, the County Attorney or the Attorney General would need to exercise their prosecutorial discretion, and choose to, in fact, file charges based on the 1901 law."
In the Arizona State Senate's statement, it was stated that the 15-week abortion ban, which will take effect 90 days after the legislature adjourns, will be put in place in addition to ARS 13-3603.
Gov. Ducey has insisted that the new law takes precedence over the total ban, but legal experts say nothing is going to change immediately.
"Neither of those statute goes into effect right away, because the Supreme Court decision that came down today doesn’t go into effect for 25 days," said Rose Law Group litigator Andrew Turk.
Prosecutors are split along party lines, with Democratic Pima County Attorney Laura Conover saying she will not prosecute providers under the new law, and Republican Maricopa County Attorney Rachel Mitchell saying she may. On June 27, officials with the Maricopa County Attorney's Office said Mitchell will use prosecutorial discretion when it comes to abortion cases involving rape or incest.
Republican Attorney General Mark Brnovich made no mention of the pre-Roe ban on Friday, pointing instead to the new law that will take effect in about 90 days. He had urged the high court to overturn Roe. On June 29, however, he tweeted that his office has "concluded the Arizona Legislature has made its intentions clear regarding abortion laws."
"ARS 13-3603 is back in effect and will not be repealed in 90 days be SB1164," the tweet read, in part.
Citing the "complex legal landscape in our state," officials with Planned Parenthood Arizona say they are officially pausing their abortion services.
"We had to turn 30 people away who were coming to us for healthcare, and I know that’s just the beginning," said Planned Parenthood of Arizona President Brittany Fonteno. "There are 13,000 patients annually that receive abortion care in Arizona. Those patients' needs don’t disappear because of a horrendous decision the Supreme Court made today."
How many abortions were being performed in Arizona?
According to figures released by the Arizona Department of Health Services, in 2020, 13,186 abortions involving Arizona residents were performed, with 85.4% of the patients being unmarried women.
It was noted in the figures that about 6,620 cases of abortions in 2020 were done via non-surgical means that involve medicine, and 6,560 cases were done via various surgical procedures.
While Arizona lawmakers have refused to ban the abortion pill, it was already challenging to obtain the pill prior to June 24. Now, it has gotten more complicated for those who want the pill to obtain it.
As federal rules outweigh state laws, the abortion pills known as mifepristone and misoprostol, both approved by the FDA and used in the country for more than two decades, remain technically legal. However, things are not that simple.
Arizona already outlawed mailing abortion-inducing pills from out of state, and requires two in-person appointments with a medical doctor to get a prescription, with no telemedicine allowed. Plus, medicated abortions using a pill are considered a medical procedure in our state, which clouds the issue even more.
"What is your access to care? What can you get? Where can you go? These are all things that we still need to figure out because the landscape still trying to be figured out all across the country," said Dr. DeShawn Taylor, an OB/GYN.
Dr. Taylor is now steering patients to other organizations for help, which mostly means out of state.
"At this moment in time, abortion care is paused in our state, and if someone has the resource to travel to a different state, then that would be the thing to do," said Dr. Taylor. "Our immediate neighbors in neighboring states is where you can go, but that also comes from a place of privilege that people can travel to other states to get abortion care."
How are people reacting to Roe's overturning?
Both Arizona senators have spoken out about the ruling, with Sen. Mark Kelly (D) calling the decision a "giant step backward for our country," and Sen. Kyrsten Sinema (D) saying the ruling "endangers the health and wellbeing of women in Arizona and across America."
Some conservative politicians have rejoiced at the ruling with Rep. Andy Biggs saying the ruling is a "major victory for all unborn children." The state's Republican Party, meanwhile, said they are "praising the good Lord today and thanking SCOTUS for their courage in the face of incredible and physical and political threat.
Read More: Arizona leaders react after Supreme Court overturns Roe v. Wade
Religious leaders also voiced their support for the ruling.
"We are rejoicing today. This is wonderful news. Under the law today, women and unborn children are protected, so we are very excited to support women in need, and walk with them during any kind of crisis they might have," said Diana Richardson Vela with the Roman Catholic Diocese of Phoenix.
Meanwhile, protesters have gathered in various parts of the country, including the Arizona State Capitol, where security barriers were set up earlier in the day. Cars were also blocked form entering the area.
"I’ve been preparing for it intellectually, but hearing the news today, feeling it in my body was truly a punch to the gut," said Josselyn Berry, who was at the Capitol ahead of the protest. "At first, I felt numb, but then, it really did hit me in waves and I did start crying. So, it’s been difficult. It’s been rough."
According to Bart Graves with DPS, some protesters attempted to break the glass at the Senate Building, prompting troopers to deploy gas.
"The crowd was attempting to break (pounding on the glass) at the Senate office building and did some minor damage," said Graves.
Graves also said that gas was deployed at the Wesley Bolin Plaza after some protesters vandalized the monument to fallen soldiers.
Video taken by State Sen. Michelle Ugenti-Rita show what happened inside the Capitol during the incident.
In a tweet, State Sen. Kelly Townsend said "we are currently there being held hostage inside the Senate building due to members of the public trying to breach our security."
However, Graves said there are no lawmakers being held hostage.
Couldn't Arizona voters decide on the issue of abortion?
A group in Arizona does, in fact, want to let voters decide on the issue in November.
Members with the group Arizonans For Reproductive Freedom is collecting signatures for a ballot initiative. They want voters in November to decide if abortion protections should be added to the Arizona State Constitution.
"I do think the ruling today has inspired people to get involved and not be complacent when it comes to civil rights, reproductive rights," said Dr. Tori Fewell. "I do think that there will be options for patients. Unfortunately, they're going to be options for patients mainly with resources."
The group has until July 7 to collect more than 365,000 signatures.
What about abortions in other states?
Until the overturning of Roe and Casey, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks. Now that Roe is overturned, the federal guarantee of abortion protection has been removed, and each state is allowed to set its own rules.
On its website, the Guttmacher Institute, which describes itself as a 'research and policy organization committed to advancing sexual and reproductive health and rights worldwide,' states prior to Roe's overturning that 26 states are certain or likely to ban abortion if Roe v. Wade is overturned or gutted.
According to the website, 13 states have trigger bans that are tied to Roe being overturned.
Some states, like California, have enacted measures that aim to protect the privacy of abortion providers and their patients.
Read More: This is where abortion will likely be illegal if Roe v. Wade is overturned
Experts say the ruling will encourage people to head across state lines to seek treatment.
"There are places around the United States that allow abortions, and in many of those liberal states, those laws will remain in effect, and if you have considerable resources and you need an abortion or are seeking an abortion, you can jump in a plane and go to that state and receive that service," said Stefanie Lindquist, Professor of Law and Political Science at Arizona State University.
Theoretically, Congress could move swiftly to enshrine a national right to abortion, but that’s unlikely. Such an effort has previously stalled in the Senate, where Democrats have only a slim majority.
If there’s no legislative path to protecting abortion, it could take decades for the Supreme Court’s decision to be undone. Justices receive a lifetime appointment to the bench, and conservatives have a strong majority that will be difficult to dislodge.
Could other social issues be affected by the overturning of Roe?
Democrats and liberals fear that a sweeping decision on abortion could undermine the right to privacy, a concept that has provided the foundation for other Supreme Court rulings over the years.
In the court's majority opinion, Justice Samuel Alito said the decision applied only to abortion.
"And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right," Alito wrote. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
Critics of the court's conservative majority gave the statement no credence.
"I don't buy that at all," said Lawrence Gostin, a professor of medicine at Georgetown University and faculty director of its Institute for National and Global Health Law. "It really is much more extreme than the justices are making it out to be."
He added: "It means that you can't look to the Supreme Court as an impartial arbiter of constitutional rights because they're acting more as culture warriors."
Gostin and others pointed to a separate concurring opinion in which Justice Clarence Thomas said the court should review other precedents, including its 2015 decision legalizing same-sex marriage, a 2003 decision striking down laws criminalizing gay sex, and a 1965 decision declaring that married couples have a right to use contraception.
Kristen Waggoner, legal director for the Alliance Defending Freedom, which helped defend the Mississippi abortion law at issue in the ruling, said the high court's decision makes it clear that "the taking of human life is unlike any other issue." She said raising other issues shows the weakness of critics' arguments about abortion.
Still, said Paul Dupont, a spokesman for the conservative anti-abortion American Principles Project, conservatives are optimistic about the potential for future victories on cultural issues, though getting more states to ban abortion is "a huge enough battle."
"If there is a thought that this could apply elsewhere, you know, they're not going to say it here, and we're just going to have to see," Dupont said.
Other factors could protect those rulings on birth control and LGBTQ rights, too. The Obergefell decision that legalized same-sex marriage was based on equal protection, and hundreds of thousands of couples have relied on it to wed, a precedent that many courts would be loath to disturb.
What do polls say about the nation's opinion on abortion?
According to a 2019 poll by the Pew Research Center, 61% of those surveyed say abortion should be legal in all or most cases, while 38% say abortion should be illegal in all or most cases.
In a 2021 AP-NORC poll, 61% of those surveyed say abortion should be legal in most or all circumstances in the first trimester of pregnancy. However, 65% said abortion should usually be illegal in the second trimester, and 80% said that about the third trimester.
In a Fox News poll released in 2021, 65% of those surveyed say Roe v. Wade should be allowed to stand. The same poll, however, found that overall views on abortion are divided, with the same percentage (49%) of those surveyed say that abortion should be illegal or illegal.
An AP article has noted, prior to the ruling on June 24, that three of the justices who appear poised to overturn Roe v. Wade were appointed by former President Donald Trump, who did not win the popular vote when he was elected in 2016. The article noted that a sweeping decision would invite new questions about how the nation’s highest court reflects — or conflicts with — public sentiment.
The Associated Press (AP) contributed to this report.