Supreme Court Justices’ Opinions on Abortion in Their Words and Voices
WASHINGTON – Abortion is already dominating the new state of the Supreme Court, months before judges will decide whether to overturn decisions dating back nearly 50 years. Not only is there a Mississippi call to overturn Roe v. Wade, but the court will also soon be asked again to examine a Texas law banning abortion in about six weeks.
The judges will not write in a blank as they consider the future of abortion rights in the United States. They’ve had a lot to say about abortion over the years – in opinions, votes, and confirmation testimony in the Senate and elsewhere. Only one, Clarence Thomas, explicitly called for the overturn of Roe and Planned Parenthood against Casey, the two cases that established and reaffirmed a woman’s right to abortion. Here is a sample of their comments:
Chief Justice John Roberts
Roberts voted to support restrictions in two major abortion issues, in the majority in 2007 to support a ban on a method of abortion that abortion opponents call “partial-birth abortion” and in opposition in 2016 when a court overturned Texas restrictions on abortion clinics in a condition called Whole Women’s Health. But when a nearly identical law from Louisiana was brought to court in 2020, Roberts voted against it and wrote the opinion controlling the outcome of the case and repealing the Louisiana law. The chief justice said he still believed that the 2016 case was “wrongly settled” but that the question was “whether it should be adhered to in deciding the current case.”
Roberts’ views on when to break the court’s precedent can determine how far he is willing to go in the Mississippi case. At the 2005 hearing, he said that repealing the precedent “is a shock to the legal system,” which depends in part on stability and fairness. He said it was not enough to think about a wrong decision in a previous case. Turning the case over, Roberts said, requires consideration of “these other factors, such as stable expectations, such as the legitimacy of the court, such as whether or not a certain precedent is viable, and whether the precedent has been eroded by subsequent developments.”
At the same hearing, Roberts was asked to explain his presence in a legal memo submitted by the George H.W. Bush administration that said Roe’s conclusion that there was a right to abortion “has no support in the text, structure, or history of the Constitution.” Roberts countered that the memo reflected the administration’s views.
Judge Clarence Thomas
Thomas voted to overturn Roe in 1992, in his first term in court, when he was an opponent in Planned Parenthood v. Casey. He has repeatedly called for the downfall of Roe and Casey since then.
In 2000, he wrote an objection when the court overturned Nebraska’s ban on “partial obstetric abortion.” Narrating the court’s decision in Roe’s case, he wrote, “In 1973, this court struck down a law of the Texas Legislature that had been in force since 1857, rendering abortion laws unconstitutional in dozens of states. As some of my court colleagues showed, , past and present, aptly, that this decision was seriously wrong. Abortion is a singular act in which a woman’s exercise of control over her own body ends, depending on one’s point of view, human life or potential human life. Nothing in our Federal Constitution forbids the people of this country It is the right to decide whether the consequences of abortion on the fetus and society outweigh the burden of an unwanted pregnancy on the mother. Although a state may permit an abortion, nothing in the Constitution requires a state to do so.”
Judge Stephen Breyer
Breyer was the lead author on two majority courts defending abortion rights, in 2000 and 2016. He has never voted to maintain abortion restrictions, but he has acknowledged the abortion controversy.
Millions of Americans believe that “abortion is akin to causing the death of an innocent child,” while millions of others fear that a law banning abortion will condemn many American women to lives lacking in dignity, he wrote in the Nebraska case. 21 years ago, he called these views “almost irreconcilable.” However, Breyer wrote, because the Constitution guarantees “fundamental individual liberty” and must rule even when there are strong divisions in the country, “this Court, over a generation, has decided and then re-established that the Constitution provides fundamental protections over a woman’s right to choose.”
Judge Samuel Alito
Alito has a proven track record of voices and writings opposing abortion rights, as a legal, and before that as a government attorney.
Alito has voted to support every abortion law considered by the court since it was confirmed in 2006, joining a majority in support of the federal “partial” abortion law and dissenting in the 2016 and 2020 cases.
As a judge on the Federal Court of Appeals, he voted to support a series of abortion restrictions in Pennsylvania, including requiring a woman to notify her husband before having an abortion. The Supreme Court eventually struck down the notification rule in Casey and reaffirmed the right to abortion in 1992 by a 5-4 vote.
While working with the Reagan administration in 1985, Alito wrote in a memo that the government should say publicly in a pending abortion case that “we disagree with Roe v. Wade.” At about the same time he applied for a promotion, Alito noted that he was “particularly proud” of his work arguing “that the Constitution does not protect the right to abortion.”
Judge Sonia Sotomayor
Sotomayor joined the court in 2009 with virtually no record of abortion cases, but she has voted repeatedly in favor of abortion rights since then. Recently, when the court allowed a restrictive abortion law in Texas to take effect, Sotomayor accused her colleagues of burying their “heads in the sand.” The majority were in abortions at the Texas and Louisiana clinic.
Sotomayor’s dissatisfaction with the recent court ruling in Texas was evident in her last hypothetical appearance. “I can’t change the Texas law, but you can,” she said.
Judge Elena Kagan
Kagan has repeatedly voted for abortion rights over 11 years ago as justice. She is also arguably the most consistent voice on the court arguing for the importance of precedent and can be expected by trying to persuade her colleagues not to forego constitutional protections for abortion.
Kagan was in the majority when the court overturned Texas and Louisiana restrictions on abortion clinics. Recently, Kagan called Texas’ new abortion law “manifestly unconstitutional” and “a clear, and indeed undisputed, conflict with Roe and Casey.”
Kagan had already wrestled with the issue of abortion before he became a judge. While working in the Clinton White House, she was the co-author of a memo urging the president on political grounds to support a ban on late-term abortion proposed by Republicans in Congress, as long as it contained an exception for women’s health. . In the end, President George W. Bush signed a similar late-term abortion ban without a health exception. The Supreme Court upheld it.
Judge Neil Gorsuch
Gorsuch probably has the shortest abortion record of the nine judges. In the majority the restrictive abortion law in Texas was allowed in effect. In the event of dissent in 2020, he would have endorsed restrictions on an abortion clinic in Louisiana. As an appeals court judge before joining the Supreme Court in 2017, Gorsuch objected when his colleagues refused to reconsider a ruling that prevented then-Utah Governor Gary Herbert from cutting funding to the state’s branch of Planned Parenthood. But Gorsuch insisted at the Senate hearing that he was concerned about procedural issues, not subject matter. “I don’t care whether the issue is about abortion or instruments or something else,” he said.
Judge Brett Kavanaugh
Kavanaugh was added to former President Donald Trump’s shortlist of Supreme Court nominees shortly after he sided with the administration in a 2017 abortion case. Trump chose him for court the following year. As a judge, Kavanaugh dissented from Louisiana’s decision and voted to allow the new Texas law to go into effect, although he took a less authoritarian stance than some of his conservative colleagues. In the case of Louisiana, for example, Kavanaugh wrote that more information is needed about how state restrictions on clinics affect doctors who perform abortions and appears to suggest that his vote could change when that information is known.
Kavanaugh’s most comprehensive writing on abortion came when he was a judge on the Federal Court of Appeals in Washington. The Trump administration has appealed a lower court ruling ordering it to allow a 17-year-old pregnant immigrant in her custody to have an abortion. The administration’s policy was to refuse to assist these minors with an abortion while in detention.
Kavanaugh was a member of a three-judge panel that postponed abortion, arguing that officials should be given a limited window to transfer a minor from state custody to a sponsor. She can then have an abortion without government help. Later, the full appeals court overturned the decision and the girl received an abortion. Kavanaugh called this decision contrary to “the numerous majority views of the Supreme Court which has repeatedly upheld reasonable regulations not placing an undue burden on the right to abortion established by the Supreme Court in Roe v. Wade.”
Kavanaugh has been criticized by some conservatives for not going as far as to associate, Judge Karen Henderson, who has stated unequivocally that an illegal immigrant in the United States has no right to an abortion. In an appeals court confirmation hearing, Kavanaugh dodged questions about his personal beliefs in Roe v. Wade.
Judge Amy Connie Barrett
Barrett’s only public vote in the Supreme Court on abortion was to allow the Texas “fetal heartbeat” law to operate. She also cast two votes as a judge on the Court of Appeals to review rulings that banned abortion restrictions in Indiana.
In 2016, shortly before the election that would lead to Trump’s inauguration, she commented on how she thought abortion law might change if Trump had the opportunity to appoint judges. Barrett, a law professor at Notre Dame at the time, said, “I … I don’t think the underlying issue – that the core of Roe believes that, you know, women have the right to an abortion – I don’t think that’s going to change.” She said restrictions on what she called “extremely late abortions” and restrictions on abortion clinics are likely to be upheld.
Barrett also has a long record of personal opposition to abortion rights, having co-authored an article for a 1998 law review that said abortion is “always immoral.” Barrett, at her 2017 hearing to be a judge on the Court of Appeals, said in written testimony, “If I am affirmed, my opinions on this or any other question will have no bearing on the performance of my duties as a judge.”