The Supreme Court is already dominated by abortion, even though it is months before they decide whether to reverse nearly 50-year-old decisions. Mississippi is calling for Roe v. Wade to be overruled. The court will soon be asked to reconsider Texas’ ban on abortion.
When they look at the future of abortion rights in America, the justices will not be starting from scratch. Over the years, they have had many opinions and votes on abortion. Clarence Thomas is the only one who has called for the overturning of Roe and Planned Parenthood. Here are some of their comments:
Roberts voted in support of restrictions in two major abortion cases. In 2007, Roberts voted in favor of a ban on partial-birth abortion, and in 2016, Roberts voted in disapproval when Texas’ restrictions on abortion clinics were overturned in Whole Woman’s Health. Roberts opposed a Louisiana law that was almost identical in 2020 when it came up before the court. He then wrote the opinion controlling its outcome and striking down the Louisiana law. Chief justice Roberts stated that he believes that the 2016 case was wrongly decided, but that the issue was whether to follow it in the current case.
Roberts’ opinions on when it is appropriate to break with precedent could influence his willingness to go in the Mississippi case. He stated that overturning precedent was a “jolt for the legal system,” which relies in part on stability, fairness and fairness. He said that simply thinking that a case has been wrongly decided does not suffice. Roberts stated that to reverse a case, one must look at “these other factors”, such as settled expectations like the legitimacy and validity of the Court. Roberts also said that examining the precedents is important, including whether they are workable or not and whether they have been affected by subsequent developments.
Roberts was also asked to justify his participation on the George H.W. legal brief. Roberts replied that the brief was consistent with the views of the Bush administration.
Thomas voted in 1992 to overturn Roe, his first term as a court member. He was a dissenter from Planned Parenthood. Since then, he has called repeatedly for Roe to be overturned.
He wrote in dissent in 2000 when Nebraska’s ban on “partial birth abortion” was struck down. Recounting Roe’s court decision, he wrote: “In 1973, the Court struck down an Act of the
The Texas Legislature, which had been in force since 1857 rendered unconstitutional many abortion statutes in numerous States. This decision was a grave mistake, as my past and current colleagues on the Court have ably demonstrated. Abortion is an individual act in which a woman can exercise control over her body. It depends on how one views human life and potential human life. The Federal Constitution does not deny citizens the right to decide whether abortion has negative consequences for the fetus or society. While a State can allow abortion, the Constitution does not require that it must.
Breyer was the main author of two court majorities that defended abortion rights in 2000 and 2016. Although he has not voted to support an abortion restriction in his lifetime, he has admitted to the controversy surrounding abortion.
Millions of Americans believe that an abortion is like causing the death to an innocent child.” While millions more “fear that an abortion law would condemn many American women’s lives that lack dignity,” Breyer wrote in the Nebraska case 21 year ago. He wrote that “this Court” has “determined and then redetermined that Constitution provides basic protection for the woman’s choice right to choose.”
Alito is a former government lawyer and a jurist with a long history of writings and votes opposing abortion rights.
Alito voted to support every abortion law that the court considered since 2006, joining a majority who voted to keep the federal “partial birth” law upheld and dissident in the 2016-2020 cases.
He voted to support a number of Pennsylvania restrictions on abortion. In the end, the Supreme Court struck down the Casey notification rule and affirmed the right to abortion in 1992 with a 5-4 vote.
Alito, who worked for the Reagan administration, wrote a memo requesting that the government declare publicly in an pending abortion case “that it disagrees with Roe V. Wade.” Alito was also applying for a promotion and pointing out that he was proud of his work in arguing that “the Constitution does not protect a legal right to an abortion.”
Sotomayor joined court in 2009 without any record on abortion issues. However, she has repeatedly voted in favor of abortion rights. Sotomayor was the majority in both the Texas and Louisiana cases involving abortion clinics.
At a recent virtual appearance, Sotomayor clearly expressed her dissatisfaction with the Texas court’s recent ruling. She stated, “I cannot change Texas’ law. But you can.”
Kagan has voted repeatedly in support of abortion rights over the course of her 11-year tenure as a justice. Kagan is undoubtedly the most consistent advocate on the court for adhering to precedents. She can be expected try to convince her colleagues to not abandon constitutional protections against abortion.
Kagan was part of the majority that overturned the Texas and Louisiana restrictions on abortion clinics. Kagan also called Texas’s new abortion law “patently inconstitutional” as it was in direct conflict with Roe & Casey.
Before becoming a justice, Kagan was already addressing the issue of abortion. She was a co-author of a memo, which she wrote while working for Clinton White House. It urged President George W. Bush to support a late-term abortion ban as long as it included an exception for the women’s health. In the end, President George W. Bush signed an identical late-term abortion ban that did not include a health exception. It was upheld by the Supreme Court.
Gorsuch’s record regarding abortion is perhaps the most concise among the nine justices. He was part of the majority that allowed Texas’ restrictive abortion law into effect. He would have supported Louisiana’s restrictions on abortion clinics had he voted in dissent in 2020. Gorsuch was an appeals court judge prior to joining the Supreme Court in 2017. He voted against a ruling that had blocked the then-Utah governor. Gary Herbert prevented funding for Planned Parenthood’s state branch from being cut. Gorsuch maintained at his Senate confirmation hearing, however, that he was only concerned with procedural issues and not the subject matter. He said, “I don’t care if it is about abortion or widgets. Or anything else.”
Kavanaugh’s name was included in the former President Donald Trump’s list of Supreme Court candidates soon after he sided for the administration in an abortion case. Trump elected him to the court in the following year. Kavanaugh, as a justice, voted against the Louisiana decision. However, he is more conservative than his conservative counterparts. Kavanaugh, in the Louisiana case, wrote that there was more information needed on how restrictions placed by the state would affect abortion doctors. This seemed to indicate that his vote could be changed if he knew that information.
Kavanaugh wrote the most extensive work on abortion while he was a Washington federal appeals court judge. Trump’s administration appealed to a lower court ruling allowing a 17-year-old immigrant to have an abortion. These minors were not allowed to have abortions in their custody. This was the policy of the administration.
Kavanaugh was part of a three-judge panel which delayed the abortion. She argued that officials should have a limited window of opportunity to transfer the minor from government custody to the care and supervision of a sponsor. The government could not assist her in obtaining an abortion. The decision was later reversed by the full appeals court and the teenager received an abortion. Kavanaugh said that the decision was out of line with “many majority opinions” by the Supreme Court, which have repeatedly upheld reasonable regulations that don’t impose an undue hardship on the abortion rights recognized by Roe v. Wade.
Some conservatives criticized Kavanaugh for not going as far than a colleague, Judge Karen Henderson. She stated unambiguously that illegal immigrants in the U.S. have no right to abortion. Kavanaugh avoided answering questions about his personal views on Roe V. Wade at his confirmation hearing before the appeals court.
Barrett’s only vote on the Supreme Court regarding abortion was to allow Texas’ “fetal heartbeat law” to go into effect. She also cast two votes to reconsider Indiana’s abortion restrictions.
She made a comment about how abortion law could change if Trump was elected in 2016, just before Trump’s election. Barrett, then a Notre Dame professor of law, stated that she didn’t believe the Roe core case that women have a right for abortion would change. She suggested that restrictions on abortion clinics and limits on “very late-term abortions”, would be more likely to stand.
Barrett has a long history of personal opposition to abortion rights. She co-authored a 1998 law review article that stated abortion was “always immoral”. Barrett testified in writing that she would not be able to influence the discharge of her duties as a judge if she is confirmed.