Supreme Court ready for direct constitutional challenge to Roe V Wade and the rights of abortion
The Supreme Court is currently considering the future of abortion rights. There, the 6-3 conservative majority could be poised to severely limit or strike down the historic Roe V. Wadedecision that legalized the controversial procedure.
A case in Mississippi is a dramatic opportunity for the court to reverse its precedent, since Brown V. Board of Education.
This may be because abortion is one of the most passionate social issues. The nationwide legal battles for its access date back to nearly 50 years.
On Wednesday morning, the nine justices will hear a challenge by the government to an abortion ban after 15 weeks.
The question is whether any state law prohibiting pre-viability elective abortions is unconstitutional. Mississippi officials boldly ask the court to reverse its 1973 Roe precedent. In this context, abortions are legal in the nation until the 24th week. This is the point at which the fetus can survive without being born outside of the womb.
The lower courts blocked the law and a state law that prohibited abortion after six weeks.
The Biden administration has backed the state’s last remaining abortion clinic and asked the court for support of Roe’s core holdings. It also requested that the Mississippi statute be invalidated. It was passed in 2018, but lower federal courts blocked its implementation.
The state’s only abortion clinic, Jackson Women’s Health Organization, performs only surgical abortions for women who are 16 weeks pregnant. According to legal briefs, about 100 abortions are performed annually by the medical facility after the 15th week of pregnancy, which is the state’s cutoff.
The JWHO director claims that the issue is not just a medical one and she is prepared for the worst from Supreme Court.
Shannon Brewer stated that abortion is a matter of economic and racial justice. She made this statement in a recent New York Timesop ed. “The restrictive state laws are inherently racist, classist and keep Black and Brown people down. Research shows that a woman denied an abortion is more likely than a woman who has it.
The state, however, has requested that the Supreme Court overturn its precedent in the name states’ rights.
Lynn Fitch, Mississippi Attorney-General, stated that the Roe decision “shackles states and enables them to see facts that are decades old.” She said that science, medicine, and technology have all advanced rapidly since 1973 but that laws regarding abortion cannot keep up with this pace. The Supreme Court can allow elected leaders to make decisions about abortion policy and give the people the power to empower women and support life.
A History of Controversy
The United States banned abortion early in the 19th Century. Connecticut was the first state to ban them in 1821, especially after “quickening”, the period during which a woman feels fetal movements.
These laws were created to protect women against dangerous abortions in “back alleys”. Due to the Victorian moral code, these laws were also vague. There have been a few movements to loosen restrictions and give women more options, but these efforts mostly failed.
In the 1960s, an organized movement was created to relax the restrictions on abortion. The medical technology was advanced enough that they were possible safely by professionally trained medical staff. Although many states had already changed their laws by the 1970s, most did so in limited ways.
The court’s 7-2 decision Roe gave women the qualified constitutional right of abortion during most of their pregnancy. In fact, the court heard two cases at the same time: Roe (aka Norma McCorvey who became an abortion opponent) which challenged a Texas bill banning abortions except for saving a woman’s life; and Doe v. Bolton which involved a Georgia law that required abortions to be performed in accredited hospitals only after a review and examination by a hospital staff panel and two other doctors.
46 states were affected by the Roe or Doe rulings.
Roe was interpreted by the justices to reflect earlier cases regarding the right of privacy. Justice Harry Blackmun wrote in the main opinion that this “right” is broad enough to include a woman’s decision to end her pregnancy.
The ruling was qualified, however, so abortion opponents have used that fact to limit the scope of the other abortion provisions. Blackmun stated that the state’s “important interest in safeguarding and maintaining medical standards and protecting life” is sufficient to justify regulation at “some point during pregnancy”.
Since Roe (1992), the abortion issue has been reexamined numerous times, most notably in Planned Parenthood (1992).
The Roe core was reaffirmed by the 5-4 vote. However, states were given the ability to regulate abortion procedures as long as they do not place an “undue burden” upon a woman’s rights to abortion. An undue burden is defined as “the purpose and result of placing substantial obstacles in the way of a woman seeking abortion before the foetus attains viability.” Both sides were dissatisfied by the ruling, believing it was unclear.
Precedent on Point
The Roe precedent has been ignored by the high court for nearly three decades. Opponents of abortion, including members of state legislatures, saw the appointment by President Trump three justices as an opportunity to pursue aggressively abortion restrictions. This was to challenge the court’s loyalty to its earlier rulings.
They were thrilled when the high court decided to separate review restrictions from Mississippi, Texas.
Both cases will be decided by the views of Justices Neil Gorsuch and Brett Kavanaugh.
Twelve states have enacted pre-viability abortion bans since 2019, including Alabama, Arkansas Georgia, Kentucky Louisiana, Montana Missouri, Ohio Oklahoma, South Carolina South Carolina Utah, and Tennessee. All of these were struck down by lower federal court.
In September, the Supreme Court allowed Texas’ six-week ban to take effect. It is the most restrictive abortion law currently in force and has effectively ended all Texas abortions.
The justices held oral arguments earlier this month, but not on the Texas law’s constitutionality, but on the “gateway” issue over whether or not abortion providers and the Justice Department can challenge the law in federal court.
The unique enforcement structure has caused a split in the courts regarding procedural issues. Because enforcement is not handled by state officials but private citizens from any part of the country, they can be deputized to or outsourced to sue Texas abortion provider and facilitate the procedure. A “bounty” can be obtained for as little as $10,000 by those who are authorized to sue. Chief Justice Roberts stated that this is possible.
Although a decision in the Texas case is still pending due to the fast-tracked nature of the case, activists from both sides view it as a preview of how conservative high court majors will respond to the challenge to Roe presented by the Mississippi appeal.
Respect for court precedent, also known as star decisis — will be a major part of the scheduled oral arguments lasting 70 minutes.
“This Court has never acknowledged–and then taken away—- a fundamental right that millions upon millions of Americans have relied upon to determine the course and participate as equals” stated Elizabeth Wydra, president, left-leaning Constitutional Accountability Center in a court brief. “The Constitution doesn’t permit this severe denial to liberty, dignity, or autonomy.
Carrie Severino of the right-leaning Judicial Crisis Network said that the topic of state discretion to impose abortion restrictions will be a major talking point for court conservatives.
Fox News’ Severino stated that “The Constitution doesn’t say anything one-way or another about abortion, which means that it’s left to states,” Severino said. “They [justices] cannot avoid dealing with the fundamental question: Is abortion actually in the Constitution? If not, why do we make these calls as judges and leave the decision to America’s representatives?
Many legal experts suggest that the court might not be ready to completely strike down Roe, but this could drastically reduce its impact on the Mississippi case. There may also be more constitutional challenges in its near future.
A court that isn’t always willing to follow a clear ideological line could limit the potential for a broad pivot on abortion, at a moment when its reputation and legitimacy are under threat. This could lead to split rulings with uncertain long-term impact.
“I am sure the chief justice would prefer to go quite slowly.” Paul Smith, a Georgetown University professor of law and appellate lawyer who has often argued before the justices, said that this tends to be his tendency in these situations. But there will be justices who want to determine the validity of Roe. Three liberals would say those should be held; three would argue that we don’t have to answer the question yet; three would be arguing that it should be overruled.
According to the Centers for Disease Control and Prevention, more than 90% of all abortions in America occur within the first 13 weeks.
In a Fox News poll, 65 percent of Americans favored keeping Roe the law of the country. This includes a majority Republicans, which is the first time this has happened in our survey. Only 28 percent want the ruling to be overturned.
However, there is a 49-percent split on abortion legality.
Recent polls have revealed that public confidence in America’s Supreme Court has fallen to historic lows. This is despite Americans trusting the justices to protect their country’s interests. Legal commentators believe that a broad ruling on abortion, however it turns out, will further damage the reputation of the judiciary in increasingly partisan times.
Expected court rulings in summer 2022, in the middle of congressional midterms, will only increase political tensions.
An overview of what the justices have said about abortion may help you to predict how the bench will rule.
Clarence Thomas, the senior Associate Justice, may be the court’s most vocal opponent of abortion precedent.
He strongly opposed the 1992 Caseydecision that upheld the right of abortion and has held these views throughout the years. He called Roe “grievously incorrect” in a 2000 case.
He wrote that abortion is a singular act in which a woman exercises control over her body. This could be, depending on how one views human life or potential human lives. “A State may allow abortion. However, the Constitution does not dictate that it must.
Many abortion opponents believe that the court will allow individual states more freedom to regulate abortion.
Justice Elena Kagan was one of three left-leaning court members. She warned her colleagues during the November 1 arguments in Texas’ abortion case that striking down Roe might have unintended consequences for other hot-button topics.
“We would live and work in a completely different world to the one we currently live in.” She stated that we would invite all 50 states to challenge the law this Court has established as to the content and un-preferred constitutional rights. “We would be like, you’re open to business. It’s impossible for the Supreme Court to stop it. You can have guns, same-sex marriages, religious rights or whatever else you want.
Although Roe is currently in the courtroom, its impact will be felt in many other areas. This decades-old opinion opened up and expanded the discussion on women’s rights and sexuality. It also influenced medical decisions and healthcare. The national lexicon now includes issues such as cloning, stem cell research, and fetal studies. Whatever the decision of the high court, the fight for abortion rights will open a new chapter and be the start of many more political battles.