The Potential For Unprecedented Power

By Charlotte Pfabe

News travels fast. Everyday when we pick up our phones, turn on the TV, or just talk to other people we are bombarded with new information. It’s like a large and extensive game of telephone, where the information gets tangled in the wires and skewed as it travels through the different channels. In today’s world, it’s hard to comb through the information we receive, especially when it comes to important events, such as new bills being passed or Supreme Court decisions. Presently, the Supreme Court has been a hot topic of discussion across the nation, and even the globe, for their recent draft leak. The draft detailed the opinion of Justice Alito and his stance on the overturning of Roe v. Wade. Before we dig deeper into that, we have to go back in time to understand how we got where we are now. 

What’s Roe v. Wade?

In 1970, a pregnant woman called Jane Roe (a fictitious name used to protect her identity) sued the state of Texas to challenge the laws in place that made abortions illegal. At the time, abortion was illegal in Texas unless it was needed to save the life of the mother. The laws in place restricting abortion were vague and difficult for doctors to follow, as argued by Roe and the doctor that joined in on her suit. Roe argued that the Texas law violated the right to liberty under the 14th amendment, infringed on the right to privacy guaranteed by the Bill of Rights, and that the right to an abortion should only be up to the person who is preganant and no one else. The state of Texas defended their law arguing that states have the responsibility to protect a prenatal life and that a fetus is a “person” that is protected by the 14th amendment.

Roe’s case was argued all the way up to the Supreme Court in 1973. After combing through the arguments presented and deliberating for months, the Supreme Court ruled, in a 7-2 decision, that the Constitution protects a woman’s right to chose to have an abortion. The court acknowledged that forcing a person to continue a pregnancy presents many risks for the pregnant individual. These risks include physical and mental health dangers, financial burdens and strain, and intense stigma from society (especially for unmarried pregnant women at the time). In their decision, Justices crossed “party” lines and made the decision to expand body autonomy rights under the Constitution. With the ruling of Roe v. Wade, the Supreme Court decided that state governments could not restrict abortion access during the first trimester of pregnancy (1-12 weeks) in any way, and can regulate abortions during the second trimester (13-26 weeks) if the regulations are related to the health of the pregnant person. The court also dug deeper into how the Constitution defines a “person”. Though the Texas government claimed that a fetus was a “person” protected under the 14th amendment, the Constitution never provides a definition of a “person”. However, the 14th amendment does protect all who are born in the US or naturalized. Using the words of the 14th amendment, the Court concluded that prenatal individuals are not persons as defined by the law. 

Though many other suits passed through the court system regarding abortion rights and access, another extremely influential lawsuit arrived on the desks of the Supreme Court justices twenty years later.  Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) challenged the new laws put in place by the Pennsylvania legislature in 1988/1989 which required informed consent and a 24-hour waiting period prior to the procedure. In addition, the new abortion control laws required a married woman to notify her husband that she was terminating her pregnancy and that a minor must have parental consent to receive an abortion. A Planned Parenthood location in Pennsylvania sued the state over the new control laws, and the case made its way up to the Supreme Court in 1992. The Supreme Court reaffirmed/upheld Roe, and imposed a new standard for determining the validity of laws that restrict abortions. The Court created a new standard that measures if a law places an “undue burden” on a women who is seeking an abortion. Under this standard, the court ruled in favor of most of the provisions put in place by Pennsylvania Legislature, however the husband notification requirement did not pass the undue burden test and therefore failed. 

Many view the ruling of Roe v. Wade as the decision that legalized abortion, however that’s not all it did. The ruling of Roe expanded the constitutional right to privacy greatly, and helped to decrease the number of deaths as a result of abortions. Roe did not impact the number of abortions performed each year, however it allowed for safer procedures and prevented many fatalities.  

Why is Roe being discussed by the Supreme Court right now?

In 2018, the Mississippi government passed a law called the “Gestational Age Act”, which prohibits abortions after 15 weeks of pregnancy. In simple terms, the law prohibits abortions even when the fetus would not be able to survive outside of the womb (not “viable”). The Jackson Women’s Health Organization, the only liscened abortion facility in Mississippi, filed a suit against the Mississippi government, requesting an emergency temporary restraining order (TRO), to stop the law from being enacted until after its hearing at the federal district court. When heard at the District Court, the judge decided that the law was unconstitutional based on precedent set by Roe v. Wade and other Supreme Court decisions. When appealed up to the Appellate Court, the US Court of Appeals also upheld the District Court’s decision, ruling the law unconstitutional. Though both courts ruled against the state, Mississippi appealed up to the Supreme Court and the case was heard. In December of 2021, the Supreme Court Justices heard the arguments made by both parties and began to deliberate and discuss the case within the courthouse. Typically, the American public wouldn’t know the decision made by the Supreme Court until they released their final drafts and rulings, however, the privacy of Court’s deliberations and drafts was breached in early May of this year by a member of the Supreme Court’s staff. 

In early May, a majority opinion draft written by Justice Samuel Alito was leaked regarding the case of Dobbs v. Jackson. In Justice Alito’s draft, he detailed that the court plans on overturning Roe v. Wade because “its reasoning was exceptionally weak, and the decision has had damaging consequences” on the American public. Alito claims that even though unenumerated rights (inferred rights) exist, they must be rooted in US history and tradition. However, in using this analysis, he contradicts rulings made by the court in recent years, such as those that backed LGBTQ+ rights. Alito also argues that women are not “without electoral or political power” and that more women vote than men.  His statements suggest that if women wanted to elect officials that support abortion rights, than they would. Alito mentions that the laws created are reflective of American women in society because they vote at higher rates, however with this argument, Justice Alito puts the burden of fighting for reproductive rights onto women, making it appear only as a “women’s issue”. 

Additionally, Alito does not only mention past Supreme Court decisions regarding abortion rights, but he also compares the ruling of Roe v. Wade to the ruling of Plessy v. Ferguson (1896) which legalized segregation in the United States. Alito cites a statistic that more women of color receive abortions than white women, claiming that Roe has had a “demographic effect”. Alito also argues that there is no longer a stigma for unmarried women who have children, one of the reasons for the ruling of Roe v. Wade, and that there is an increased demand for adoption which makes abortion less necessary. However, he does not address the over 400,000 children already in the US foster care system, or the fact that carrying a pregnancy to term can affect both the mental and physical health of a pregnant individual. 

Though Alito wrote the leaked draft, the other Justices on the Court have also made their stances clear regarding Roe v. Wade. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barret have all voted with Alito. Justice Brett Kavanugh supported Alito’s comparison of Roe to Plessy, stating that many cases were “egregiously wrong when decided”, and that the Supreme Court should overturn Roe v. Wade. In addition, Justice Amy Coney Barret argued that safe-haven laws “take care of [the] problem” of abortion. Barret is known for her conservative views on abortion and has taken a “pro-life” stance publically in the past. Chief Justice John Roberts, however, did not vote with his fellow conservative justices, and instead argued that the issue with this case (Dobbs v. Jackson) should only be the 15 week ban and not the rest. 

What happens if Roe is overturned?

Overturning a Supreme Court decision is incredibly rare and difficult. The Supreme Court averages around 76 cases per year, which is around 17,632 cases across its 232 years of existence. Out of the over 17,000 cases decided, the court has only overturned around 232 cases since 1810 (Library of Congress). This amount only accounts for around 1.3% of total cases decided by the court over its entire history. Overturning a decision is a last resort effort for the Supreme Court. Justices are supposed to follow past decisions and uphold the precedents set before them. In many cases, rulings have been overturned because of a change in societal “norms”. However, opinions on abortion rights have not changed in the US. The US is still exceedingly divided on abortion rights, with many in the most recent generation (Generation Z) actively supporting the expansion of access to abortions and the scope of Planned Parenthood. Based on the opinions and drafts of the Supreme Court Justices, they argue that there is not a need for abortion rights because of a change and elimination of the stigma around pregnancy, however this change does not eliminate the need for abortions. 

Having a child does not only put a physical burden onto a pregnant person, but it also puts a mental, financial, and emotional burden onto the person as well. Many families who want children plan for months or years in advance to be able to afford to raise a child. When it comes to unplanned pregnancies, many people do not have the funds to care for a child during or after pregnancy. Many facilities exist to assist pregnant women throughout pregnancy and directly after the birth, however after that the resources dwindle and the support dissolves, leaving many alone and desperate. 

In addition, the possible overturning of Roe v. Wade could open “Pandora’s Box”. When the Supreme Court overturns a decision, it gives them power. With the current, more conservative, Court in place, they may move to overturn other decisions based on their partisan beliefs. Justices are supposed to look at the facts and not allow their own biases and opinions to influence their decisions, however in the case of Dobbs v. Jackson, many of the justices have forgotten the pledge they took to rule fairly based solely on the facts. 

If Roe v. Wade is overturned, many states are already prepared to completely ban abortions and make it illegal to have an abortion. 13 states have laws called “trigger laws” that have been enacted since 1973, which restict abortion as long as the Supreme Court allows it. If Roe v. Wade is overturned, these “trigger laws” will be enacted immediately or very quickly, eliminating all access to abortion in these states. Though these laws make abortion illegal, they also can have other implications on pregnant women. These laws could affect women who have miscarriages, and accuse them of terminating a pregnancy, leading to legal battles and possible criminal charges. They could also turn neighbor against neighbor, and allow people to turn in others who they suspect have had abortions. The overturning of Roe v. Wade could also lead to a limitation of health classes in schools and at Planned Parenthood locations that teach about consensual relationships and contraceptives. Without this education, pregnancy rates may increase, and so may illegal abortions. 

Limiting abortion access has never impacted the amount of abortions performed. The number of illegal abortions before Roe was the same as the number of legal abortions after Roe, however the rate at which people died due to abortion procedures decreased after the ruling. The overturning of Roe v. Wade would have immediate and long-lasting impacts on the country and power of the court. When a government gets the power to regulate what you do with your body, they expand their power and restrict the power of the people. As a country, America has progressed greatly over time, however the decision of the Supreme Court has the power to either protect that progress or send us back 50 years. 


Safe Haven Laws: Laws that allow a distressed parent to safely give up custody of their child with no questions asked; typically safe haven locations include police departments and firehouses. 

Sources:

https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

https://ballotpedia.org/Supreme_Court_cases,_October_term_2019-2020

https://constitutioncenter.org/blog/a-short-list-of-overturned-supreme-court-landmark-decisions#:~:text=The%20Library%20of%20Congress%20tracks,since%201810%2C%20says%20the%20library.

https://www.nytimes.com/interactive/2022/us/abortion-bans-restrictons-roe-v-wade.html

https://www.cnn.com/2022/05/02/politics/roe-v-wade-supreme-court/index.html

https://www.oyez.org/cases/1971/70-18

https://www.oyez.org/cases/1991/91-744

https://www.oyez.org/cases/2021/19-1392

https://supreme.findlaw.com/supreme-court-insights/roe-v–wade-case-summary–what-you-need-to-know.html

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