Staying Current: Supreme Court Overturns Roe v Wade
The Supreme Court handed down a landmark decision overturning Roe v Wade. This decision will reverberate in American politics for years to come
Preface
My intention was to write articles in advance of the regular Saturday column, and perhaps one article, each week. I already finished my Saturday column and submitted it. The Supreme Court threw a wrench in that plan by releasing one of the most important landmark decisions in recent memory. Due to the importance of this story I felt it best I write a separate piece on the ruling, Dobbs v. Jackson’s Women’s Health Center, instead of editing my regular Saturday column. I may post full length articles on breaking news in the future, depending on how much time I have to react to stories as they occur. Otherwise, events like this will certainly appear in the Saturday column.
What Happened?
The Supreme Court, in a 6-3 ruling, overruled Roe v. Wade: a nearly 50 year old precedent which found the right to an abortion in the 14th Amendment of the Constitution, and enshrined abortion rights up to the second trimester. The Supreme Court clarified this decision at least twice in subsequent decisions, most notably in Planned Parenthood v. Casey which protected Roe, and created separate tests to determine how states can regulate abortion within the Roe framework. The new ruling overturns those precedents and states that abortion is not a protected right found in the Constitution, and allows states to regulate abortion as they see fit.
How does this Impact Me?
I want to ensure the reader gets an accurate understanding of the impact of this decision: this ruling, in and of itself, does not ban your right to get an abortion. Instead the ruling returns the ability of states to regulate aboriton (or not regulate abortion) based on each state’s laws on the matter. This will result in dramatically different rules depending on which state you reside in. Here is a helpful tool to determine the status of abortion in your state. Now that Roe is overturned: it is likely states will take actions to either further solidify abortion rights, or to pass further restrictions, depending on the politics of each state.
A Brief History of Constitutional Rights
Although the United States Constitution, and the Bill of Rights, explicitly grants American citizens numerous rights and protections under the law (these rights are called enumerated rights). These rights include commonly held rights like the Freedom of Speech, Freedom of Religion, and Freedom of Assembly. But also included are less known rights such as the right to not have the military enter or use your home. This stems from the British practice of using American homes during the Revolutionary War. But other famous rights are not explicitly written in the Constitution (called unenumerated rights). There is debate among constitutional scholars over whether unenumerated rights can be found in the constitution, and how much leeway states and the federal government have in enforcing those rights. Some famous unenumerated rights include:
-Parts of Miranda Rights
-Right to Vote
-Right to Travel
-Right to Privacy
The Right to Privacy is, perhaps, the most contested of unenumerated rights, and has resulted in the most debate among scholars and inside the Court itself. It is in the right to privacy which the Supreme Court found a right to an abortion.
In the particular case of Roe v. Wade, which Dobbs overturns, the Supreme Court found that the 14th Amendment of the United States provides American citizens with a fundamental right to privacy, which includes a woman’s right to have an abortion through the second trimester. Although this right was later clarified and modified under later decisions: this right held until today’s ruling on the standard.
Abortion is not the only right found under the 14th Amendment, other pertinent rights potentially relevant today include:
Right to Marriage (holding that the state cannot discriminate based on gender or race)
Right to Contraception
Right to Relations (banning the criminalization of certain practices, like homosexual relationships)
This is not an exhaustive list. However, the Supreme Court decisions which protected the rights listed above were explicitly mentioned by some Supreme Court justices as potentially wrongly decided and worth revisiting.
Abortion Politics
Abortion is not a new practice, and is not a recent political issue. The issue of abortion stems at least back to 1821 when Connecticutt passed the first law banning abortion in the United States. By 1900 a majority of American states banned the practice. The debate continued through most of the 20th century, until in 1973 the Supreme Court ruled abortion as a right found in the Constitution in Roe v. Wade. This decision is one of the most consequential decisions in American history, but also among the most hotly contested. Since Roe was decided many in the country protested the legality of aboriton, and formed the Pro-Life movement, which holds that abortion is morally wrong, and akin to killing a human being.
Although Roe v. Wade itself polls highly, with some polls suggesting that as many as 70% of Americans supporting the precedent. However, American opinion on abortion itself varies widely resulting in ambiguous results. For instance, in the poll cited above from the Pew Research Center: 70% of Americans oppose overturning Roe, but this does not mean most Americans support, or condone abortion. In a survey from 2019 the University of Notre Dame did an intense background on abortion, and found most Americans held uncertain and ambiguous stances on the issue.
Overall it is unclear how this decision will impact politics today. Most people who opposed abortion before this decision voted for Republicans, and vice versa for Democrats. It is unlikely this decision will change minds.
Outlook
Immediately the decision will make abortion illegal in most cases across large swaths of the United States, including Texas America’s second largest state and states which had “trigger laws” to ban abortion in the event of a ruling overturning Roe. It is possible that other states without these trigger laws will follow suit. Since the Pro-Life position is mostly correlated with the Republican Party we must watch states where the GOP holds power in those state’s governments. The largest Republican held state without a “trigger law” is Florida.
I encourage each reader to investigate what their state’s laws say about abortion, Politico is tracking these laws here.
The larger legacy of this bill may be in how it impacts Supreme Court decisions on other unenumerated rights found within the Constitution. In a concurring opinion Justice Clarence Thomas explicitly asked the Court to review the following decisions:
Griswold v. Connecticut this ruling struck down laws which barred married couples from acquiring and using contraception.
Lawrence v. Texas which ruled that it was unconstitutional for states to ban homosexual relations
Obergefell v. Hodges which ruled that it was illegal for states to deny homosexual couples the right to marry
It is important to note: no Justice joined Clarence Thomas in his concurring opinion. That being said, the fact that at least on Justice supports reconsidering (and likely overturning) these three important precedents is noteworthy in and of itself. This does not mean that a future Court ruling will overturn them, but that there are voices within the Court which seek to overturn them.