What the decision to overturn Roe v. Wade means

Marci Hamilton, a Penn Professor of Practice and founder and CEO of the nonprofit think tank CHILD USA, offers thoughts as this news unfolds.

On Friday, the Supreme Court voted to overturn Roe v. Wade after nearly half a century, stripping away the constitutional right to abortion that the original decision had given.

Almost immediately, Kentucky, Louisiana, Missouri, and South Dakota signed abortion bans into law, and at least eight other states are expected to follow suit.

The case, known as Dobbs v. Jackson, is named for the lawsuit the Jackson Women’s Health Organization filed against the state of Mississippi in 2018, suing over the state ban of abortions after 15 weeks of pregnancy. Thomas E. Dobbs III runs Mississippi’s health department.

Marci Hamilton sits at a table beside large windows overlooking Penn campus.
Marci Hamilton, Fels Institute of Government Professor of Practice. (Image: OMNIA)

In May, a leaked draft of a decision suggested the Supreme Court was poised to strike down Roe. “The last time such a challenge had legs was during the 1988 term,” says Marci Hamilton, a Penn Professor of Practice and founder and CEO of the nonprofit think tank CHILD USA. “I was clerking for Justice O’Connor, who was the Justice that saved Roe back then.”

Today, Hamilton says, “Chief Justice Roberts is the only religious conservative on the Court who understands the seismic impact of this decision.” But what does the Dobbs v. Jackson verdict mean for abortion rights in the United States? Hamilton offers several thoughts.

Though the decision is a legal one, its foundation rests on religious beliefs about when life begins

“The reasoning of the majority was built on their religious viewpoints,” Hamilton says. “They believe that life begins at conception, which means the right to abortion must fall to clear the way for public policies that protect the fetus. There is a built-in deference to the fetus; it’s a person for them. Many Americans don’t believe life begins at conception, which makes the majority opinion difficult to even comprehend, let alone embrace.”

The decision is about giving rights to the fetus, not about removing rights from those who get pregnant

“The Court majority thinks Dobbs is just like Brown v. Board of Education. It compares its overruling of Roe to overruling Plessy v. Ferguson, which held that slaves were property; overruling it meant slaves were free people with constitutional rights. In Dobbs, this Court views itself as liberating the fetus against pregnant girls and women. For them it’s a decision about liberty, not oppression.”

Dobbs guarantees that abortion regulations will stand by assigning ‘rationality’ review to any challenges

Rationality review means state abortion regulations will get the lowest level of scrutiny, Hamilton says. “With that announcement, the Court further empowered the fetus against the pregnant. Women’s interests will also be treated with rationality, so the Court has essentially leveled the playing field between living girls and women and fetuses.”

It’s not yet clear how this decision will affect other privacy rights decisions

In his concurring opinion, Justice Clarence Thomas noted that the same rationale used to overturn Roe could, in theory, be used to strike down previous decisions around contraception, as well as same-sex marriage and same-sex consensual relations. As of now, he is the only justice to expressly state this, Hamilton says. “But the others in the majority talk in terms of ‘tradition’ that implies the end of privacy rights for contraception and LGBTQ rights.”

Marci Hamilton is a professor of practice in political science in the School of Arts & Sciences at the University of Pennsylvania. She is also the founder, CEO, and academic director of CHILD USA, a 501(c)(3) nonprofit academic think tank at Penn dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect.