SCOTUS 2022: A Five-Justice Majority Strips Abortion Rights While the Full Court Expands Guns and Church Power

Precision matters here: the Court's 6-3 conservative majority voted to uphold Mississippi's 15-week abortion ban, but the five-justice majority—Justice Alito joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett—authored and joined the opinion that actually overturned Roe and Casey. Chief Justice Roberts concurred in the judgment only, agreeing the Mississippi law could stand but explicitly refusing to go further, calling the full overruling 'a serious jolt to the legal system.' That 5-1-3 split is the legally operative structure: five justices eliminated a 49-year constitutional right; one agreed to narrow it; three dissented entirely. Conflating Roberts with the majority obscures the fact that a single justice's defection would have produced a narrower ruling preserving some constitutional floor for abortion access.

The racial-justice consequences of the five-justice majority opinion are severe and compound existing inequities. Scholarship from the Harvard Law Review's 2022 Foreword on the Roberts Court documents that the majority failed to recognize that reversing Roe inflicts a distinct racial injury: it is 'devastating to black people with the capacity for pregnancy' because Black women are disproportionately concentrated in the ban states and already face the worst maternal health outcomes. Post-ban data bear this out. The Gender Equity Policy Institute, drawing on CDC vital-statistics data, has reported that Texas — which enacted SB 8 nearly a year before Dobbs — saw maternal mortality rise 56 percent in the first full year of its abortion ban (2021 to 2022), compared with 11 percent nationally over the same period; Black women in the state went from 31.6 to 43.6 maternal deaths per 100,000 live births. (Project Daylight flags these figures as drawn from an advocacy organization's analysis of CDC data; independent verification of the underlying CDC tables is recommended before citation in litigation or testimony.) As of January 2025, roughly 62.7 million women and girls live under state abortion bans.

Beyond Dobbs, the full 6-3 supermajority's work in the same term compounded the damage. Bruen's 'historical tradition' test for gun regulations has since been described by lower-court judges as unworkable and has complicated enforcement of domestic-violence firearm restrictions — provisions that disproportionately protect women of color. Carson v. Makin and Kennedy v. Bremerton dismantled the Establishment Clause architecture that protected students in public schools from state-sponsored religious expression and opened the door to taxpayer subsidies for religious schools that discriminate against LGBTQ+ students and staff. Taken together, the 2022 term was not a set of isolated rulings but the operational payoff of a decades-long project to reshape constitutional rights — one whose final phase included the Senate's 2016 refusal to hold hearings on Merrick Garland's nomination and Justice Barrett's confirmation on October 26, 2020, eight days before Election Day.

The DOJ Civil Rights Division's response to this landscape is the fight now. EMTALA, HIPAA, and federal preemption doctrine gave DOJ tools to push back on emergency care denials; the Biden administration used them and the Trump administration has abandoned them. Section 2 of the Voting Rights Act — which the Harvard Law Review Foreword notes is firmly grounded in the 14th and 15th Amendments — remains a live enforcement tool against the racially discriminatory election rules the Roberts Court has otherwise permitted to proliferate. Staffing the Civil Rights Division, defending EMTALA in court, and aggressively enforcing Section 2 are not optional responses to the 2022 term. They are the only federal counterweights left.