In 1973, the United States Supreme Court ruled in Roe v. Wade that women held a right to an abortion through the first two trimesters of a pregnancy with virtually no interference from the state. They added that in the third trimester, a state did have a compelling interest in preventing abortions due to the fact that a fetus became ‘viable.’ The Court held that after the second trimester, a fetus could live outside the mother’s women, and the state could create legislation protecting that child should it choose to do so.
Since the Roe case, conservatives have fought to establish laws and even Constitutional amendments to mitigate this ruling. Conservatives now have their best opportunity in decades to limit legalized abortion in the United States. In 2018, Mississippi passed a law which banned abortions after 15 weeks into a pregnancy. That law immediately elicited a legal challenge the Supreme Court is debating in Dobbs v. Jackson Women’s Health Organization.
About Roe v. Wade …
The Roe case is far more complicated than most people want to admit (from the left or right). In this case, Norma McCorvey (given the pseudonym ‘Jane Roe’) sought to have an abortion in Texas. McCorvey, who only recently passed away, was recruited by pro-choice advocates as a candidate to challenge Texas’ state law banning abortion.
McCorvey was pregnant for the third time at the age of 21 and sought an abortion, but lacked the financial means to travel to any nearby states which permitted it. In the midst of a prolonged legal struggle, McCorvey gave birth to her child and put up her baby for adoption. (Note: for over half a century, the identity of the ‘Roe baby’ went unknown. Check out an interesting article from The Atlantic detailing the life of Shelley Lynn Thornton and her well-known mother.) McCorvey often waffled back and forth on her position on abortion, and her stories are inconsistent, but the facts of the case and the Supreme Court’s ruling are less so.
In Roe, McCorvey’s attorneys argued that the Due Process Clause of the 14th Amendment gave a woman the right to choose whether or not to have children as a choice of bodily autonomy. The Due Process Clause reads,
” … nor shall any state deprive any person of life, liberty, or property without due process of law.“– 14th Amendment, The Due Process Clause
The argument presented to the Court contended that the word ‘liberty’ should be construed to allow women the freedom to terminate their pregnancy should they so choose. They bolstered their argument with the concept that women maintained a right to privacy established in Griswold v. Connecticut.
In essence, if the state of Texas blocked a woman’s ‘liberty’ to an abortion, then it did so without providing due process of law. In this instance, ‘due process’ refers to the state’s violation of rights in an arbitrary nature. States can create laws banning certain behaviors if strong enough reasons exist, and their burden for what qualifies as a good reason increases when they attempt to restrict fundamental rights.
Texas asserted that its interest in protecting human life allowed its restriction on abortions — for the mother and the child. In this regard, the Court agreed that the state did have an interest in protecting life. Yet, the Court also maintained restrictions on abortion would impact the life of a woman.
The Court established more of a balancing act than advocates of either side in the abortion debate are willing to cede. The idea that a woman possessed a right to terminate her pregnancy at any time was not part of the ruling in Roe, nor was the notion that a state’s interest proscribed abortion in all instances.
The decision ultimately rests with the notion of a state having a compelling interest to restrict a woman’s choice. The Court delineated circumstances about which a state may restrict an abortion. Essentially, during the first trimester of a pregnancy, the decision about abortion lies with a woman and her physician. The only restrictions a state could implement during this time must be reasonably related to the health of the mother. The Court also concluded that as a pregnancy progressed, so did the interest of the state. Once a fetus became viable (meaning the child could live outside the mother’s womb — approximately 24-26 weeks), the state possessed a much stronger interest in protecting human life, which permitted stronger restrictions on an abortion. With respect to Texas’ law, it was considered far too rigid and inflexible for the criteria established by the Court (as did many other state laws at the time).
States changed their laws on abortion to meet the standards established in Roe. States which are generally more liberal established legislation which is far more permissive to a woman’s ability to choose, making abortions more accessible, even into the latter stages of a pregnancy. In the more conservative states, the legislation focused on establishing strict protocols about the physicians who could perform abortions and the standards for medical facilities which perform abortions. (Many states only have one clinic which performs abortions.)
So, what’s changed between Roe and now?
In 1992, the Court heard another case involving abortion with Planned Parenthood v. Casey. In that case, Pennsylvania placed restrictions on abortion within their state that some believed too burdensome on a woman’s right to choose. The Court upheld the notion that a woman held the right to choose to end her pregnancy, but overturned the trimester framework established in Roe. The Court favored determining fetus viability (at any point) as the demarcation for the point at which the state could have an interest in blocking an abortion. The Court also maintained that some restrictions implemented by the state did not impose an undue burden on a woman’s right to choose. For instance, Pennsylvania required a 24 hour waiting period before the abortion was to take place, with a doctor providing information about the procedure and its effect on the health of the woman. According to the Court, this did not truly prevent a woman from obtaining an abortion. Since the ruling in Casey, conservative states added more restrictions on abortion, which furthered the divide about abortion policy from one state to the next.
Thecomposition of the Supreme Court’s membership may represent the most significant change from 1973 and now. Former President Donald Trump greatly influenced the current makeup of the Court, nominating three justices in one term. The current ideological makeup of the Court has six conservatives and three liberal judges. While this is no guarantee of any particular outcome, it definitely looms in the minds of both liberals and conservatives. The lineup of justices in 1973 was more difficult to read, particularly when some of the conservative justices voted with Roe in that 7-2 decision (including a trio of Nixon appointees).
A wave of conservative justices on the Court prompted states to force a legal battle by passing a number of bills which purposely violated criteria established in Roe and Casey. Conservative states wanted these bills challenged in the judicial system to force a Supreme Court showdown on the issue of abortion. Their belief is that the current mood on the Court will favor them in overturning prior decisions.
In 2018, Mississippi passed a law which banned abortions after 15 weeks, with no allowances for cases of rape or incest. The Jackson Women’s Health Organization, the only clinic in the state to perform abortions, immediately brought a challenge in federal district court. The state’s law was struck down by the district court, and again on appeal in the Fifth Circuit Court of Appeals. Mississippi then appealed to the Supreme Court.
On December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, and it was interesting, to say the least. The attorneys arguing for Mississippi argued primarily that because the Constitution does not specifically address the issue of abortion, each state should be free to establish its own policies pertaining to the subject. Additionally, a right to an abortion does not exist because it is not specifically listed as a right in the Constitution, but as an abstraction erroneously created by the Supreme Court in Roe.
Counsel for the state of Mississippi also argued that people want to make decisions about abortion policies locally, to best suit their region. They asked the Court to eliminate the ‘viability’ line used to determine if a state has an interest in preventing an abortion.
The attorneys for Jackson Women’s Health summed up their argument in three succinct points. First, the legal principle of stare decisis is too great of a burden to overcome. Second, the Court in Roe and Casey ruled correctly in both instances. Finally, they contended that a change to a abortion policy would “propel women backwards.”
Who’s going to win this case?
In this case, Mississippi is fighting from a position of weakness. It possesses a significant burden in persuading the Court to overturn an established precedent. The Court has long held to the principle of stare decisis (“let the decision stand”), which means current decisions are largely considered in the light of previous cases on the same issue. They utilize this to maintain a consistency in the interpretation of rights and do not deviate lightly.
In the oral arguments before the Court, the justices addressed the issue of how overturning Roe without compelling reason would damage its integrity as an institution. Part of the Court’s history includes the fact that it is not political. Justice Sotomayor noted,
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”– Justice Sonia Sotomayor
The public must understand that the Court will make the correct decision based on law, rather than what political leanings its current members have. To rule without a heavy reliance on precedent would leave the nation in a precarious situation where the Court’s rulings would constantly flip-flop in what is or is not Constitutional.
While conservatives might see the current ideological makeup of the Court as an advantage, the Court sees it differently. Institutional integrity means more to the members than ideology. This isn’t the first time anti-abortion advocates believed they had the votes to overturn Roe. In Casey, conservatives believed the decision would fall their way. Justice Sandra Day O’Connor, appointed by President Ronald Reagan, voted to reaffirm the decision in Roe. She was the deciding vote in a 5-4 decision.
The latest appointees to the Court, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, have voted against former President Trump’s conservative wishes in a number of instances so far. One of the significant aspects about the justices is that once they receive membership on the Court, they may act with judicial independence. They owe the president no allegiance.
While the Court adheres to the principle of stare decisis, it has overturned some of its previous decisions. For instance, in Brown v. Board of Education (1954), the Court overturned the doctrine of ‘separate but equal’ in terms of racial segregation.
So, how does the Court know when to overturn cases? Criteria for overturning precedent generally is fluid, but most legal experts agree on a few things: workability, quality of reasoning, and a changed understanding of the relevant facts.
Workability refers to if the standing case set a precedent which practically wasn’t applicable for lower courts to apply. The Court also considers the quality of reasoning from the prior case. Did the Supreme Court err in its logic? Finally, our understanding of facts sometimes changes. Apply this concept in particular to the Brown case. American society’s thoughts on racial segregation were not the same in 1954 as the precedent, which was established in 1897.
The standards set in Roe and Casey do not appear to create an unworkable standard, regardless of one’s position on abortion. Over 50 years have passed since the decision in Roe and courts have no problems in adjudicating the guidelines about what does or does not constitute violations of the decision. The understanding of the facts has not changed in any way that would cause the Court to move too far from their position. The only change in this regard might be what is a viable fetus. In this regard, the understanding of ‘viability’ may change, but not the ruling in Casey.
Can we look at the decisions in Roe and Casey and claim that the logic was flawed? Counsel for the state of Mississippi believed so, but they focused primarily on the argument that because abortion isn’t mentioned in the Constitution, states should be free to create their own policies pertaining to the matter (via the 10th Amendment).
The state largely ignored, however, the concept that ‘liberty’ in the 14th Amendment established the right to choose to terminate a pregnancy. If that right is recognized by the Court, then states are obligated to permit that action.
The final verdict
There isn’t enough presented by the oral argument to convince justices that the logic was flawed. Mississippi’s lead attorney objected to the logic of Roe as abstract and not grounded in history or tradition. This ignores a number of legal traditions which are abstract, not written down but are accepted nonetheless. The very concept of judicial review isn’t written down, but widely accepted. This is true of a number of other legal rights which are implied, though not listed.
I believe the standard of overturning precedent is so difficult to overcome, that the pro-choice side of this argument would struggle if Roe had been decided differently. I don’t believe the Court will overturn precedent. It isn’t that the anti-abortion crowd doesn’t have some compelling points about the matter, but the burden, in this instance, is almost insurmountable.
Even with the Court opting not to give Mississippi carte blanche to dictate its own abortion policy, I do believe the Court will augment its standard for the state’s interest in some capacity. The understanding of viability in the medical community has changed since 1973, where it now believes the time frame to be 22 weeks (as opposed to 24-26 weeks originally).
Regardless of political leanings, I believe the Court might surprise people with a ruling that uphold precedent, not because they believe abortion is the correct policy, but because they care about the institution of the Court. Deviating on abortion now creates an even more dangerous precedent — turning the Supreme Court into a partisan political institution.
If the Court travels down the path of political expediency rather than adherence to judicial standards, it sets the stage for constant changes in policy with the political beliefs of the justices deciding serious issues. Trained monkeys could do that. Much like so many of our governmental institutions, the Court’s reputation and legacy is on the line, and they aren’t about to trade it away.
Would I like to see the abortion policies of the nation change? Without question. Yet, I think what we will see in the near future is a need to change abortion policy through political means rather than judicial. I believe this will include creating policies in state legislatures which will permit widespread use of contraception and better policies on sex education. This will also include establishing valuable policies about who can perform abortions and the conditions under which they can be performed. It should also include programs which will assist mothers who lack the financial means to raise a child.
People might ask me why I don’t believe a judicial solution is the way to go if I do not approve of abortions. My answer is simple. Even if the anti-abortion crowd wins this case (and there’s still a good chance of that), it won’t end legal abortions in the country. It will only mean states are free to shape their own policies on abortion. More liberal states like New York and California will still allow legal abortions. Conservative states won’t allow it, and for places like Mississippi, it’s not much of a change at all.
Using political means, the power of non-profits, and religious organizations might also be useful in reducing the number of abortions. Provide assistance and encouragement to women who are thinking about having an abortion. There are plenty of terrible arguments for and against abortions, but the notion that pregnant women must bear personal responsibility for their actions will no longer pass the standard.
The justices, in this case, will have individuals on both sides. Justices Thomas and Alito are assuredly in the anti-abortion camp. Newer members, Justices Gorsuch and Kavanaugh lean that well as well. Justices Breyer, Sotomayor and Kagan will land on the pro-choice side.
The two judges I believe to be wildcards are Chief Justice John Roberts and the newest appointee, Amy Coney Barrett. Roberts is no fan of abortion, but he has demonstrated on many occasions, that his tenure as Chief Justice will be one which carefully protects the institution of the Supreme Court. His principles come before his politics. Upholding precedent matters to him.
Barrett represents another interesting position because she’s had a mixed history as a lower court federal judge in dealing with abortion cases. During her Senate confirmation hearings, she also dodged questions about the matter, and her answer was fairly true — she often commented that she couldn’t explain positions on hypothetical situations. She could only deal with actual controversies with a set of facts in front of her. While it can be seen as carefully avoiding the issue, it’s also something that we would want a judge to actually do.
The outcome of the cases is unlikely to please liberals or conservatives, regardless of the Court’s decision. Legal abortions are going to continue, but likely not under the same standards.