Transcript for Why the Supreme Court almost overturned Roe v. Wade 30 years ago — but didn’t
- In 1992 the Supreme Court almost overturned Roe v. Wade. The court had made abortion a constitutional right in 1973, but for years the justices had been growing more conservative. By the 1990s as many as seven justices seemed likely to oppose abortion rights.
So when the court agreed to hear an abortion case from Pennsylvania called Planned Parenthood versus Casey, everyone thought that this case could be the one that toppled Roe. But then Roe survived. Not one, not two, but three of the justices who seemed like they were iffy on Roe ended up reaffirming abortion rights. That surprising decision means that almost 30 years later, Americans still have a constitutional right to abortion.
But maybe not for much longer. Back in December the Supreme Court heard another case, one from Mississippi that could strike at the heart of Roe v. Wade. In fact, the court may get rid of Roe altogether, and if that happens abortion could quickly become illegal in more than 20 states. We're still waiting on the court's decision. So will 2022 to be the year Roe finally falls? What's changed and what hasn't since the last time the right to abortion was seriously threatened?
To understand why the right to abortion didn't get overturned in 1992, we need to start with Roe v. Wade. On January 22, 1973, the Supreme Court struck down a Texas law that made abortion a crime. They ruled 7 to 2 that states couldn't ban abortions, at least until a fetus is viable, or able to survive outside the womb. This decision changed Americans lives overnight. Mary Ziggler, a professor who studies the history of abortion law, told me what happened.
- Before the decision only four states had allowed abortion with no restriction. Many states, more than half, had a regime similar to Texas's. And so Roe had the effect of changing the sort of super majority of American laws on abortion at the time.
PRESENTER: Abortion opponents were horrified by the decision, and they began to mobilize almost immediately. In the decade after Roe they tried to have Congress pass a constitutional Amendment outlawing abortion, but they failed. However around the same time the Supreme Court was starting to look friendlier to their cause. By the early '80s the court was still striking down abortion restrictions, but the number of justices who opposed abortion was growing.
- Sandra Day O'Connor, who was Ronald Reagan's first Supreme Court nominee, wrote a dissent not only saying that a specific abortion law was constitutional, but saying that Roe v. Wade as a whole was unworkable. And so these two things happening at the same time created this idea within the anti-abortion movement that the strategy should be not to change the Constitution, but to overrule Roe, and to do that by changing the Supreme Court.
- To learn more about why abortion rights opponents embraced this strategy, I talked to James Bopp Jr. He's a prominent conservative lawyer who's been working in the anti-abortion movement since the late 1970s. In the years after Roe, Bopp research Supreme Court precedents and how they got overturned because asking the justices to reverse themselves is a big deal.
- The Supreme Court gives great weight to prior precedents. The idea is what we need to have a stable law. They also aren't too fond of saying that they are wrong.
- But precedents do get overturned, and Bopp concluded that when it comes to really big, important, contentious precedents, the Supreme Court often follows a familiar pattern.
- It usually takes a series of cases where they question the precedent, they undermine the precedent, they limit the precedent, they distinguish the precedent until the precedent has-- is basically so full of holes that they are then-- when they become willing, they overturn the precedent. So you've got to have a long term strategy that undermines the precedent.
PRESENTER: That's exactly what started to happen with abortion in the 20 years after Roe. And by 1992, the court was even more conservative, and several justices had openly questioned the ruling. Then the court decided to hear arguments over Pennsylvania's Abortion Control Act in Planned Parenthood versus Casey. Pennsylvania's law made it more difficult for a woman to get an abortion, but for reproductive rights lawyer Kathryn Kolbert who was arguing for Planned Parenthood, the larger stakes seemed clear.
- There is absolutely no way that this case is only about the Pennsylvania restrictions. This case is about making abortion illegal. This case is about sending women back to the back alleys for their medical care.
We all believed we were going to lose. And in fact, our strategy for the case was built on the fact that we were going to lose in the court, and that we had to win back the rights we were going to lose through the legislative process, through Congress. And most importantly, through electing a pro-choice president in 1992.
- But a surprise was coming. At first, behind closed doors, five justices were prepared to overturn Roe. But then Justice Anthony Kennedy changed his mind. He worked in secret with two other centrist justices to write a compromise opinion.
SANDRA DAY O'CONNOR: After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the rule of stare decisis we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undue interference from the state.
- So what happened? 30 years later, we're still not sure. But we have a few guesses. First, Kennedy may have had a simple change of heart.
ANTHONY KENNEDY: At the heart of liberty is the right to define one's own concept of existence of meaning, of the universe but the mystery of human life.
- On top of that, the justices seemed to be worried about how they'd be perceived if they overturned Roe. That may have been a particularly strong concern for a Republican appointed justice like Kennedy in a year when a Republican president was up for reelection. But while they didn't overturn Roe, they did uphold most of the abortion restrictions from Pennsylvania, and they made a big change to how Roe worked.
Under Roe viability was determined by trimesters. Lawmakers weren't allowed to restrict abortion in the first trimester of a pregnancy at all, and they were only allowed to regulate it in limited circumstances in the second trimester. In Casey, the justices threw out the trimester framework and replaced it with a compromise that was much more confusing. They said that lawmakers had the power to regulate abortion up until viability, as long as they didn't put an undue burden on the woman.
The problem was that they didn't specify when viability starts, and they also didn't clearly define what undue burden means. So while abortion rights opponents were initially disappointed by the ruling in Casey, they soon realized the court had left a lot of wiggle room for more restrictions in the future.
- The issue you lived on. And the door was not shut, but it was actually opened up more to us.
- Over the following years, Bopp and other opponents of abortion passed hundreds of restrictions in dozens of states, and those restrictions just got more expansive over time. In large swaths of the country a decade of restrictions have whittled away at the right to abortion to the point where there are six states with only one abortion provider. This term the court will be deciding the constitutionality of a Mississippi law that banned most abortions after 15 weeks, long before fetuses are considered viable. It could be the most significant abortion case since Casey.
What's changed since then? Mainly the Supreme Court. Most Americans still want Roe to stay on the books, but the court's conservative majority may have other ideas. But it's another election year. If the justices overturn Roe, it would almost certainly make the court look political and it might hurt Republicans in the midterms. So we could see another decision like the one in Casey, where the justices keep Roe versus Wade in name, but weaken it even more in practice. In general though, things are not looking good for the abortion rights movement. Because upholding the Mississippi law without formally striking down Roe is looking like their best case scenario, and that would still have a huge, huge impact on women's ability to get an abortion.
- When you uphold a ban on abortion at 15 weeks of pregnancy. You have struck at the heart of Roe and Casey, because Casey and Roe permitted everyone to have a right to an abortion up until viability. When you take that away, the hallmark of Roe is undermined. It is gone.
- When the Supreme Court heard oral arguments on abortion in December, I was really interested to hear talking points that had come up in my own conversations with anti-abortion advocates, sometimes even from the mouths of the justices. Take the comparison between Roe and Plessy versus Ferguson, which upheld racial segregation laws. James Bopp Jr. said he explicitly modeled his strategy to overturn Roe on the strategy to overturn Plessy.
- I looked at the NAACP. They had, of course, a very successful effort to overturn Plessy versus Ferguson, which you remember, is a separate but equal doctrine, and they spent several decades with a very well developed strategic plan that ultimately led to the overturning of that horrendous decision in Brown versus Board of Education in 1954.
- And during the oral argument, who brought up Plessy? None other than Justice Samuel Alito.
SAMUEL ALITO: Is it your answer that we needed all of the experience from 1896 to 1954 to realize that Plessy was wrongly decided? Which answer my question, had it come before the court in 1897, should it have been overruled or not?
- The suggestion, of course, is that if a precedent is wrong, it should be overturned, just like Plessy. And it's a pretty big hint about where at least one justice stands on Roe. We'll be exploring the relationship between politics and the justices more in future episodes. So stick with us, and subscribe to FiveThirtyEight on YouTube so you don't miss a video.
This transcript has been automatically generated and may not be 100% accurate.