Where Each Supreme Court Justice Stands on Roe v. Wade
The U.S. Supreme Court will hear oral arguments on Wednesday in a case that represents a direct challenge to the precedent established in the 1973 landmark case Roe v. Wade.
Dobbs v. Jackson Women's Health Organization deals with the state of Mississippi's near-total ban on abortions after 15 weeks of pregnancy and asks the court to overturn Roe.
In 1973, the court found a constitutional right to abortion by a vote of 7 to 2. This decision was reaffirmed in the 1992 case Planned Parenthood v. Casey, which could also be overturned in Dobbs.
The nine justices have differing views on the issue of abortion, but those who advocate for the reversal of Roe may believe their time has come as the court has a solid 6-3 conservative majority.
That majority does not necessarily mean Roe will be overturned, however. Much will depend on the justices' willingness to break longstanding precedent, with Chief Justice John Roberts previously indicating that he's cautious about doing so.
That said, the justices' rulings on other abortion cases may point to how they will approach Dobbs when it comes before them on Wednesday. Here is a summary of where the nine justices stand on abortion.
John Roberts
Chief Justice Roberts is a member of the court's conservative wing and has previously been a crucial swing vote in abortion cases. He has sided with the liberals in some key cases.
In 2007, he voted with the majority to uphold a ban on so-called partial-birth abortion. That case related to the Partial-Birth Abortion Ban Act of 2003. In 2016, Roberts dissented from the majority in a case that struck down abortion restrictions in Texas.
The chief justice's decisions have erred on the side of respecting precedent. In 2020, he voted with the majority to strike down a Louisiana law that was almost identical to the Texas law the court considered in 2016, citing that precedent.
The Texas and Louisiana laws required doctors who provide abortions to have admitting privileges at local hospitals.
Roberts may not be willing to throw out the precedent established in Roe and affirmed in Casey. Earlier this year, he joined the liberals in voting to grant a stay of Texas' six-week abortion ban, though the majority voted not to grant the stay.
Clarence Thomas
Justice Thomas is the longest-serving member of the court and its most senior conservative. He is also a strong opponent of Roe and, as a member of the court in 1992, he voted with the minority in Casey.
He has subsequently called for both rulings to be overturned. A dissenting opinion he wrote in a 2000 case on a Nebraska ban on partial-birth abortion may sum up his position.
Thomas called the decision in Roe "grievously wrong."
He went on: "Abortion is a unique act, in which a woman's exercise of control over her own body ends, depending on one's view, human life or potential human life.
"Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."
Thomas repeated that language in his dissent from the 2020 decision on the Louisiana ban, writing: "Our abortion precedents are grievously wrong and should be overruled."
He voted with the majority in refusing to grant a stay to the Texas abortion ban.
Stephen Breyer
The most senior liberal on the Supreme Court, Justice Breyer is the author of the two majority opinions upholding abortion rights in 2000 and 2016. He has consistently voted against permitting abortion restrictions.
Breyer also criticized the court's majority for refusing to grant a stay of Texas' six-week ban, telling NPR the decision was "was very, very, very wrong—I'll add one more very."
In the opinion on the 2000 Nebraska case, Breyer wrote that "this court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose."
"We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case," he wrote at the time.
Breyer is extremely unlikely to vote in favor of reversing the precedent set in Roe.
Samuel Alito
Justice Alito has voted in favor of upholding every abortion restriction that has come before the court since he joined it in 2006. The conservative voted with the majority on the 2007 partial-birth abortion ban case.
He dissented in the 2016 Texas case and the 2020 Louisiana case, and voted not to grant a stay to Texas' six-week ban earlier this year.
When he was a judge at the federal appeals court level in 1991, Alito dissented in support of a Pennsylvania requirement that women notify their husbands before they could have an abortion, with some exceptions. The Supreme Court eventually struck down the notification requirement in Casey.
Sonia Sotomayor
Justice Sotomayor has consistently voted in favor of abortion rights since she joined the Court in 2009. She wrote a blistering dissent when the majority voted not to grant a stay to Texas' six-week ban.
"The court's order is stunning," the liberal justice wrote. "Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand."
Elena Kagan
The most junior member of the court's liberal wing, Justice Kagan has consistently voted in favor of abortion rights and is also a strong believer in the need to respect precedent.
Although she has not written any of the court's major abortion decisions, Kagan called the Texas six-week abortion ban "patently unconstitutional" in her dissent on the refusal to grant a stay of the law.
She also strongly criticized the court's so-called "shadow docket "in that dissent. This refers to the issuing of emergency orders without hearing oral arguments, which was the case in the Texas stay.
"This court's shadow-docket decision making every day becomes more unreasoned, inconsistent, and impossible to defend," Kagan wrote.
Neil Gorsuch
Former President Donald Trump's first appointee, Justice Gorsuch is a conservative who dissented in the 2020 Louisiana abortion case and joined the majority in refusing a stay to the Texas ban on November 1.
However, Gorsuch has had little opportunity to rule on abortion. Following the Louisiana decision, he said the court abandons "the traditional constraints of the judicial process when a case touching on abortion enters the courtroom."
Brett Kavanaugh
Justice Kavanaugh, another conservative and Trump appointee, joined the dissent in the 2020 Louisiana case but also said more information was needed in order to determine how the law's restrictions affected doctors who performed abortions.
When he was in the federal appeals court, Kavanaugh was part of a three-judge panel that postponed an abortion in a case involving a 17-year-old migrant in government custody. The judges ruled that the government should be given a window to find a sponsor for the 17-year-old, at which point she could obtain an abortion.
The full appeals court overturned the decision and some abortion opponents criticized Kavanaugh, arguing he should have found that migrants had no constitutional right to an abortion.
Since joining the Supreme Court, Kavanaugh has often sought to strike a conciliatory tone and it is not clear how he might vote on overturning Roe.
Amy Coney Barrett
The newest member of the court, Justice Barrett has a history of personal opposition to abortion. While a law professor at Notre Dame, Barrett and her husband signed a letter to "oppose abortion on demand and defend the right to life from fertilization to natural death."
However, the Trump-appointed conservative also said in 2016: "Roe's core holding that, you know, women have a right to an abortion, I don't think that would change. But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics, I think that would change."
Barrett voted with the majority in refusing to grant a stay of the Texas six-week abortion ban. It remains to be seen, however, whether she's willing to overturn longstanding precedent.
