June 27, 2022

Ending nearly 50 years of federally protected access to abortion, the U.S. Supreme Court on June 24 overturned Roe v. Wade, returning power to individual states to set their own laws.

“The Constitution makes no express reference to a right to obtain an abortion…,” the June 24 ruling said. “We thus return the power to weigh those arguments to the people and their elected representatives.”

The final ruling closely mirrored the draft leaked to Politico in May.

The Mississippi law at the center of the ruling banned abortion after 15 weeks, except to protect the life of the woman, or if there was “a serious risk of substantial and irreversible impairment of a major bodily function.”

Justice Samuel Alito delivered the opinion for the majority in which Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Chief Justice John Roberts agreed with the judgment that Mississippi’s law should stand, but in a separate opinion, he said that in overturning Roe v. Wade entirely, the court had gone further than necessary. The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

We fact-checked multiple key statements in the final ruling.

In Mississippi “to support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States ‘permit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.’”

This is partially accurate.

In a footnote, Alito listed Canada, China, the Netherlands, North Korea, Singapore and Vietnam, and then, citing the work of the Center for Reproductive Rights, added Iceland and Guinea-Bissau. But the center’s latest count finds a dozen countries in that group.

In addition, defining what constitutes a non-therapeutic, elective abortion is complicated. Many European nations, for example, have broad exceptions that allow abortions after the 20th week to protect the mother’s welfare. That group includes Germany, Great Britain, Norway, Ukraine, Spain and many others.

When Sen. Lindsey Graham, R-S.C., made a similar claim, we rated it Half True.

“At the time of Roe, 30 states still prohibited abortion at all stages. … At the time of the adoption of the Fourteenth Amendment, over three-quarters of the states had adopted statutes criminalizing abortion (usually at all stages of pregnancy).”

This history lacks important context, and is refuted by at least one legal review.

Among other changes, the 14th Amendment said that no state shall “deprive any person of life, liberty, or property, without due process of law.” It’s a powerful protection, and it’s been linked to abortion rights.

Alito’s statement that when the 14th Amendment was ratified in 1868, over three-quarters of the states had criminalized abortion (usually at all stages of pregnancy) is challenged by a law professor at the University of California Davis.

In a December 2021 article, Aaron Tang wrote that, at ratification, “21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding.” Quickening was the term used to describe a woman’s sensation of fetal movement in her womb. It roughly applies to the 15th or 16th week of pregnancy.

That said, Tang also wrote that by 1868, 31 of the 37 states had laws “punishing abortion in some form or another.” The historians PolitiFact reached in February said Alito’s numbers are largely correct, though by the time the 14th Amendment was ratified in 1868, doctors had been pushing for over a decade to criminalize abortion as part of a campaign to professionalize medicine.

“The doctors’ targets were midwives and others who were not licensed,” Peter Hoffer, professor of history at the University of Georgia, told us. “It was necessary to protect the health of women, as abortion at that time was not a particularly safe procedure.”

Early term abortions were common, University of Illinois historian Leslie Reagan previously told PolitiFact. Abortion bans might have been on the books, but they were largely ignored.

“They were prosecuted when women died,” Reagan said. “In the rare case of a prosecution where no one died, juries usually nullified the law and refused to convict for the abortion itself.”

There were also times when families sued abortionists for damages, and won, Reagan said.

“It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”

Alito is correct that U.S. women turn out to vote at higher rates than men, which has been the trend over recent decades.

He was citing women’s higher turnout rates to argue that women “on both sides of the abortion issue” can influence the state legislative process by voting. In 2021, the trend in states was toward passing more abortion restrictions.

In 2020, the share of voting women was 68% and voting men was 65%, according to a Census Bureau survey. Researchers cite various reasons, including that women “are more likely to rely on government services and are often more directly affected by highly debated issues like reproductive rights, child care/family leave, among others,” Kelly Dittmar, a Rutgers University political scientist, told PolitiFact in September.

Reacting to the leaked draft opinion at the time, Julie A. Wronski, associate professor of political science at University of Mississippi, said the argument, however, misses context: “The context is that the types of women voting in (Mississippi) lean Republican. And abortion attitudes are polarized by party identity.”

The Due Process Clause of the 14th Amendment “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition.’”

Alito was quoting from Washington v. Glucksberg, a 1997 U.S. Supreme Court ruling that found a state is permitted under the 14th Amendment to pass a law prohibiting assisted suicide.

The Washington state ruling said, in part: “First, the court has regularly observed that the clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this nation’s history and tradition. … An examination of our nation’s history, legal traditions, and practices demonstrates that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years.”

But Alito’s opinion ignored that the court hasn’t always held rights to that standard since the Glucksberg case, said Evan D. Bernick, Northern Illinois University College of Law professor and expert on the 14th Amendment. In Obergefell v. Hodges, the same-sex marriage case decided in 2015, the court didn’t apply the Glucksberg test, he said.

In the ruling for the same-sex marriage case, Justice Anthony Kennedy said for the majority that some cases in the past about marriage — such as Loving v. Virginia, which ruled that laws banning interracial marriage were unconstitutional — did not rely on past historical preferences.

“Loving did not ask about a ‘right to interracial marriage,’” Kennedy wrote. “Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”

“It is beyond dispute,” that the legalization of abortion reduced the size of the Black population. “A highly disproportionate percentage of aborted fetuses are Black.”

Alito pointed to data from the U.S. Center for Disease Control and Prevention for 2019. It showed that 38% of women who had abortions were Black, 33% white, 21% Hispanic and 7% other race or ethnicity.

The data are reported voluntarily by providers to state or area health departments and therefore information may be incomplete and result in undercounting abortions, notes Kaiser Family Foundation. The data excludes 23 reporting areas (states plus New York City) that did not report, did not report by race/ethnicity, or did not meet reporting standards.

Alito’s statement lacks context about why there are racial differences in abortion rates. Susan Cohen, a former vice president at the Guttmacher Institute, an organization that supports abortion rights, in 2008 wrote that anti-abortion activists have pointed to the race data “falsely asserting that the disparity is the result of aggressive marketing by abortion providers to minority communities.”

Cohen wrote that the variation in abortion rates across racial and ethnic groups relates “to the variation in the unintended pregnancy rates across those same groups.”

The National Black Women’s Reproductive Justice Agenda, a national group that supports reproductive rights, has said Black women are more likely to lack access to comprehensive sex education and contraception, and “as a consequence, they experience higher rates of unintended pregnancy than women of any other ethnic or racial group.”

This article was originally published by PolitiFact, which is part of the Poynter Institute. It is republished here with permission. See the sources for these fact checks here and more of their fact checks here.

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Jon Greenberg is a senior correspondent with PolitiFact. He was part of the PolitiFact team during the 2012 presidential election and was one of the…
Jon Greenberg
Amy Sherman is a staff writer with PolitiFact based in South Florida. She was part of the team that launched PolitiFact Florida in 2010 and…
Amy Sherman

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  • Again and again, Poynter highlights some of the very worst fact checks from PolitiFact.

    In this example, PolitiFact asserts that Alito was “partially accurate” to state the Mississippi legislature reported as fact that, when its abortion law was enacted, only a handful of nations permitted elective or non-therapeutic abortion-on-demand after 20 weeks.

    Why “partially” accurate? PolitiFact first explained Alito mentioned a total of eight countries permitting such access even though his source, by its latest count, listed 12. What didn’t PolitiFact explain? Alito gave a date with his updated count (Feb 23, 2021). PolitiFact does not explain why Alito’s count needs updating beyond that date, nor why it counts as insufficient for Alito to provide the date matching his count. As a result, PolitiFact promotes the misleading narrative that Alito’s information was not accurate.

    To bolster its point, PolitiFact alleged the difficulty of defining non-therapeutic abortion but without providing a clear example of that supposed difficulty. Pointing to statutes that use potentially ambiguous language should not count as unambiguous examples. PolitiFact mentions statutes permitting later abortion to preserve the mother’s “welfare.” Why is protecting a mother’s welfare not clearly therapeutic? PolitiFact doesn’t say.

    PolitiFact also uncritically states some of Alito’s legal reasoning was “refuted by at least one legal review.” PolitiFact kept from readers what it had to know if it read the review it cited: That review was in turn rebutted by the authorities on whom Alito had relied (Finnis and George). What can excuse PolitiFact’s failure to disclose that to its readers? And why do fact-checkers like those at PolitiFact seem to use “refute” as though it serves as a synonym for “rebut”? The former sends the message to readers that PolitiFact accepts that the dispute between Tang and Finnis/George is settled in favor of the former. Is it? By what authority?

    With more time to spare I might point out additional problems with this misinformative PolitiFact “fact check.” But these two deficiencies by themselves ought to embarrass the Poynter Institute over its decision to highlight this work at its website.