With Roe v Wade on the brink of defeat, following the leak of a supreme court opinion written by Justice Samuel Alito and signed by four other conservative judges, the court’s views – and track record – on abortion are under extreme scrutiny. Here’s what the nine justices have actually said over the years about it.
Chief Justice John Roberts
Roberts voted for abortion restrictions in two major cases: in 2007, to uphold a ban on what opponents call “partial-birth abortion”, and in dissent in 2016, when the court struck down Texas restrictions on abortion clinics.
But when a virtually identical law from Louisiana came before the court in 2020, Roberts voted against it – and wrote the opinion striking it down, insisting the 2016 case “was wrongly decided” but that the question nevertheless was “whether to adhere to it” in deciding the 2020 case.
Roberts’ views on when to break with court precedent could determine how far he is willing to go in the Mississippi case. At his 2005 confirmation hearing, he said overturning precedent “is a jolt to the legal system”, which depends in part on stability and evenhandedness.
Merely thinking that an earlier case was wrongly decided is not enough to overturn it, he said – it requires looking “at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments”.
Clarence Thomas
Thomas has repeatedly called for Roe to be overturned, and voted to do so in 1992 when he was a dissenter in Planned Parenthood v Casey.
In 2000, he wrote of Roe: “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.”
Stephen Breyer
Breyer, who announced his retriement earlier this year and will be replaced by Ketanji Brown Jackson (whose own record “offers few clues” as to how she’ll lean on abortion cases), led the two supreme court majorities in defense of abortion rights, in 2000 and 2016, though he has acknowledged the controversy over abortion.
Millions of Americans believe “that an abortion is akin to causing the death of an innocent child”, he has said, while millions of others “fear that a law that forbids abortion would condemn many American women to lives that lack dignity”.
Still, Breyer wrote, because the constitution guarantees “fundamental individual liberty”, and because it has to govern even when there are strong divisions in the country, “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.”
Samuel Alito
Alito, who wrote the majority opinion in the leaked draft, has a long track record of opposing abortion rights. He voted to uphold every abortion law the supreme court has considered since his 2006 confirmation.
Before, as a federal appeals court judge, he voted to uphold a series of Pennsylvania abortion restrictions, including requiring a woman to notify her spouse before obtaining an abortion. The supreme court ultimately struck down that notification rule in Casey and reaffirmed the abortion right in 1992 by a 5-4 vote.
In 1985, while working for the Reagan administration, Alito wrote that the government should say publicly in a pending abortion case “that we disagree with Roe v Wade”. He also noted he was “particularly proud” of his work arguing “that the constitution does not protect a right to an abortion”.
Sonia Sotomayor
Sotomayor joined the court in 2009 with virtually no record on abortion issues, but has voted repeatedly in favor of abortion rights since then.
Recently, when the court allowed Texas’s restrictive abortion law to take effect, Sotomayor accused her colleagues of burying “their heads in the sand”.
Her displeasure with the court’s recent Texas ruling was evident at a virtual appearance she made. “I can’t change Texas’s law, but you can,” she said.
Elena Kagan
Kagan also has repeatedly voted in favor of abortion rights in more than 11 years as a justice. She is also arguably the most consistent voice on the court arguing for the importance of adhering to precedents. She called Texas’s new abortion law “patently unconstitutional” and a “clear, and indeed undisputed, conflict with Roe and Casey”.
Kagan had already grappled with the issue of abortion before becoming a justice. While working in the Clinton White House she was the co-author of a memo that urged the president for political reasons to support a late-term abortion ban proposed by Republicans in Congress, so long as it contained an exception for the health of the woman.
Ultimately, George W Bush signed a similar late-term abortion ban without a health exception. The supreme court upheld it.
Neil Gorsuch
Gorsuch has perhaps the shortest record on abortion among the nine justices. He was in the majority allowing Texas’s restrictive abortion law to take effect. In dissent in 2020, he would have upheld Louisiana’s abortion clinic restrictions.
But Gorsuch insisted at his Senate confirmation hearing that he was concerned about procedural issues, not the subject matter. “I do not care if the case is about abortion or widgets or anything else,” he said.
Brett Kavanaugh
Trump named Kavanaugh to the supreme court shortly after he sided with the administration in a 2017 case involving abortion.
He later dissented from the Louisiana decision, and voted to allow the new Texas law to take effect, though he has taken a less absolutist stance than some of his conservative colleagues.
In the Louisiana case, for example, Kavanaugh wrote that more information was needed about how the state’s restrictions on clinics would affect doctors who provide abortions; and although he voted to allow the Texas law to go into effect, during oral arguments he appeared to have doubts about its novel structure and whether it would lead to a spate of copycat laws, both on abortion and other rights protected by the constitution.
Amy Coney Barrett
Barrett has a long record of personal opposition to abortion rights, co-authoring a 1998 law review article that said abortion is “always immoral”.
Her one public vote on the supreme court concerning abortion was to allow the Texas “fetal heartbeat” law to take effect, though she joined Kavanaugh in raising skeptical questions about its structure.
She also cast two votes as an appeals court judge to reconsider rulings that blocked Indiana abortion restrictions.
In 2016, before Trump’s election victory, she spoke about how she thought abortion law might change if Trump had the chance to appoint justices.
“Roe’s core holding that, you know, women have a right to an abortion – I don’t think that would change,” said Barrett, then a Notre Dame law professor. She said limits on what she called “very late-term abortions” and restrictions on abortion clinics would be more likely to be upheld.
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