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The Future of Abortion Rights In The United States

Civil Rights Policy Brief #178 | By: Rodney A. Maggay | December 4, 2021

Header photo taken from: Ford Foundation

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Photo taken from: The New York times

Policy Summary

In 1973 the United States Supreme Court decided the landmark case Roe v. Wade. That case ruled that a woman’s choice to have an abortion is protected by the U.S. Constitution. The basis of the ruling by the Court was that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a “right to privacy” which includes the choice to have an abortion. The case then laid out a balancing test that focused on each of the three trimesters of a woman’s pregnancy.

In 1992 the Supreme Court decided the case Planned Parenthood v. Casey, another landmark abortion case. In this case, the Supreme Court decided that abortion is still a protected constitutional right as was established in Roe but decided to change the legal standard to use when analyzing statutes that dealt with abortion. Instead of the balancing test based on the trimester framework, the Court replaced that test with the “undue burden” standard. This new legal standard would now test abortion restrictions and hold them invalid if the restrictions “plac[ed] a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

On December 1, 2021 the Supreme Court heard oral arguments in the case Dobbs v. Jackson Women’s Health Organization. In 2018 the State of Mississippi passed the Gestational Age Act which prohibited abortions after fifteen weeks of pregnancy. Viability for a fetus outside the womb is generally considered to start at 23 – 24 weeks of pregnancy. The Mississippi law would thus ban abortions prior to fetus viability which would be in direct contradiction to the holding in Roe v. Wade which permits a woman the right to choose to have an abortion prior to the period of viability. The Court has not issued a decision in the case which is expected at the end of the Supreme Court’s 2021 – 2022 term. LEARN MORE

Policy Analysis

There is no more contentious issue in the United States than abortion rights. Since the landmark Roe v. Wade decision in 1973 there have been numerous attempts to have the case overruled while abortion rights supporters have done all they can to prevent that from happening. With three abortion cases before the Supreme Court for the 2021 – 2022 term it appears that the Court will be tasked again to decide whether Roe v. Wade should be overruled or upheld. The appellants in the Dobbs case even went so far as to ask specifically for the Court to overrule Roe.

Is there a chance that Roe v. Wade (and, the 1992 case Casey v. Planned Parenthood) could be overruled? While the political question of abortion easily places anti – abortion activists on the right and abortion rights proponents on the left it is the legal arguments and the legal standards used in the earlier abortion cases that gives hope to those on the right for the case to be overruled. Their point of contention is the grounding of the constitutional right to abortion in the “right to privacy.” However, there is no “right to privacy” specifically mentioned in the U.S. Constitution. In the dissenting opinions of Roe Justices Byron White and William Rehnquist elaborate that the Constitution makes no mention of the “right to privacy.” 

It stands to reason then that if there is no constitutional right to privacy then there can be no right to abortion based on that constitutional right. And, this is what the appellants in the Dobbs case are hoping the current Court will see and rectify. Constitutional law often begins with the text of a clause or amendment (the First Amendment’s Free Speech Clauses, the Fourth Amendment’s prohibition on unreasonable searches and seizures) but there is none that can be relied on in the case of abortion. Many legal scholars and opponents of abortion rights have understood this weakness in Roe’s legal reasoning for decades and now sense that the time has come for them to ask the Supreme Court to eliminate the ungrounded legal reasoning and overrule the case once and for all.

Photo taken from: The BBC

But even if the prospects to save Roe v. Wade look slim is there a chance that abortion rights can be saved even if the case cannot? After oral arguments in the Dobbs case it appeared that Chief Justice Roberts was open to upholding Roe v. Wade while also upholding the abortion restrictions that are at the heart of the abortion case out of Mississippi. But with at least five right leaning justices on the Court that might not matter if all of the five decide to vote to overrule Roe

But there is a misconception that overruling Roe will outlaw abortion when that will not be the case at all. If Roe were overruled, then the issue of abortion rights would fall back to each individual state to decide for themselves. If Mississippi, Texas and other states decide to ban abortion completely in the wake of an overruled Roe v. Wade other states could very well decide that abortion would be permitted in their own states. More left leaning states like California, New York, Massachusetts, Colorado and Washington could bolster their laws that already permit abortion. 

The likely outcome if the case is overruled would be some states that allow abortion and some states that would outright ban it. Abortion would no longer be constitutionally permissible but it would still be available depending on the state. A woman in Texas could still travel to Colorado for an abortion if she chooses. This might not please everyone but abortion would not be banned outright all across the U.S. and would still be available in some states if not all states. The country will simply have to wait until next year to find out how the Supreme Court will rule in this highly anticipated and closely watched case. LEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Engagement Resources​

Click or tap on image to visit resource website.

Center for Reproductive Rights – abortion rights group’s infopage on Dobbs v. Jackson Women’s Health Organization case.

Planned Parenthood Action Fund – group’s infopage on abortion access in the U.S.

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