Third Way: Will Roe v Wade Be Overturned?
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In 2018, the Mississippi state legislature passed House Bill 1510, otherwise known as the Gestational Age Act. This bill stated that, unless there was a medical emergency, it would be illegal for physicians to perform an abortion after 15 weeks’ gestation. The physician – and the woman upon which the abortion was performed – would then be guilty of a felony if it occurred after 15 weeks. This act was passed in 2018, which was only one of many bills that were passed in Southern states in an effort to implicitly prohibit abortion.
There is one striking problem with the Gestational Age Act and the campaign against abortion overall: it goes directly against one of the most pivotal Supreme Court rulings in US history, Roe v Wade. The ruling states that because of the Due Process Clause of the Fourteenth Amendment, women have a fundamental right to privacy that allows them to choose whether or not to have an abortion. Thus, creating and passing laws that go against this right to privacy and due process are unconstitutional and violates women’s rights. The Supreme Court ruled that no state regulations may be made regarding the first trimester (1-12 weeks) and in the second trimester (13-26 weeks), states can only pass regulations that are related to the mother’s health. The Gestational Age Act, which regulates abortions that take place during the second trimester, does not refer to maternal health and was not written or passed solely on the basis of relation to maternal health. This thus violates Roe v Wade and the constitutional right to abortion that was determined in 1973.
However, even after the Roe v Wade verdict, abortion rights have continued to face their challenges. Planned Parenthood v Casey, which occurred less than 20 years after Roe v Wade in 1992, had a much closer verdict of 5-4 and also created new regulations regarding abortions. For instance, the ruling of this case, which centered around informed consent and notification of a husband in Pennsylvania, both upheld Roe v Wade as well as the Pennsylvania provisions of the case that restricted access to abortions. They ruled that a minor seeking an abortion was still required to receive parental consent before getting an abortion, as well as a 24-hour waiting period after the abortion was requested, although a husband was no longer required to be informed due to it being an undue burden on the women. This shows, however, that the fight against abortion persisted even 20 years after the Roe v Wade verdict.
The current Supreme Court, to which Trump has recently appointed three nominees, now stands at a 6-3 conservative majority. These six conservative justices, in accordance with their party membership, have all previously expressed conservative views on abortion. This means that they are all likely to rule in favor of constitutional bills that prohibit abortion. While politics are not supposed to influence the Supreme Court justices’ decisions, they unfortunately often do and so the justices’ positions on this particular ruling can almost be predicted ahead of time. That being said, a ruling that states that the Mississippi H.R. Bill 1510 is constitutional would prove devastating to women’s rights and the United States as a whole. As many southern and conservative states have a trigger ban, meaning that abortion would be immediately banned in their states if Roe v Wade were to be overturned, a woman’s choice as to whether or not to have an abortion would almost instantaneously disappear.
As the case has not yet been heard by the Supreme Court, there is still some question as to how exactly the justices will vote. However, it is incredibly likely that they will follow their traditional conservative views and rule in favor of Mississippi. This would be in contrast to the ruling of the lower courts, which stated that the 15 weeks’ restriction for abortions was unconstitutional because it placed an undue burden on a woman’s right to abortion. Yet since the first two courts held a conservative majority, and still ruled that the law was unconstitutional, the justices may place more of an emphasis on precedent and constitutional rights as opposed to their political views.
Surprisingly, although it might seem as so given the traditional party line as well as the view of the justices on the Supreme Court, most Americans – including some conservatives – do not want abortion to be repealed. In several different polls, over 60% of American voters have stated that they do not want Roe overturned and agree with its decision in establishing the right to an abortion. However, conservatives still want more restrictions on abortions. These restrictions would be different than a complete ban on abortion, however, which is what Mississippi’s Gestational Age Act and an overturning of Roe v Wade would likely lead to.
Nevertheless, unlike members of Congress, who are supposed to represent their constituents’ interests, Supreme Court justices are only supposed to interpret the constitutionality of laws. This means that the public’s more open belief as to abortion has no merit in their decisions. The Democratic view has largely been supportive of abortion and the woman’s right to choose. Although there is some division within the party, as there is on every issue, the majority of Democrats are pro-choice. Within the pro-choice faction, there is a split between those who believe abortion should be legal in every case and those who believe it should be legal just in most cases. The latter is in favor of a few more restrictions in place, similar to the Republicans who believe in Roe v Wade.
Supreme Court precedents are considered binding and are hardly ever overturned or ruled against. If the Supreme Court does end up ruling in favor of Mississippi, disastrous consequences could ensue. While this case by itself might not illegalize abortion, it would make extremely tight restrictions and enable many states to enact laws that are mostly preventive of abortion. This directly goes against a human’s right to bodily autonomy as well as the fundamental right to privacy that is explicitly stated in the Due Process Clause. There will always be women who need abortions, even if it is illegal, and thus an overturning of Roe v Wade would likely lead to more unsafe and back-alley abortions being performed. Is that not more harmful to women and children than simply legalizing abortion?
While the case has not yet been decided, we can only hope that the justices will put aside their party and political views and rule in favor of women’s rights.
