Roe v. Wade Is Already Weakened — Will This Supreme Court Deal The Final Blow?
Justices will hear oral arguments Dec. 1 in the latest challenge of state regulation of abortions, Dobbs v. Jackson Women’s Health Organization, which legal scholars say will give a more conservative court a renewed opportunity to revisit the constitutional right of abortion that has been recognized for a half-century.
Dobbs v. Jackson Women’s Health is a challenge to Mississippi’s Gestational Age Act, which prohibits all abortions, with few exceptions, after 15 weeks. After the law’s passage, the state’s only abortion provider sued, winning a restraining order that prevented it from going into effect.
The case is the latest in a string of challenges to state regulations pushing back the point in pregnancy at which abortion is allowed. In the past two years, a dozen states have passed laws banning abortion at some point before fetal viability, and each has been either stayed or overturned by lower courts.
The battle over the degree to which states may regulate abortion has been waged since Roe v. Wade. But even before that, the high court decided in Griswold v. Connecticut in 1965 that the Constitution recognized a “right of privacy” — one that prevented states from prohibiting the distribution of contraceptives.
Barry McDonald, professor of law at Pepperdine University in Malibu, California, said the 1973 abortion decision came on the heels of a longer line of cases like Griswold that recognized fundamental rights not specifically articulated in the U.S. Constitution — such as childrearing, marriage, procreation and contraception.
“The challenge in Roe v. Wade was a natural extension of those cases, with one big exception,” said McDonald, who teaches constitutional law and has written extensively on abortion law. “And that is, on the other side of the scale from the ability of a person to control their private choices, now you have a living fetus.”
In the past, a patchwork of abortion restrictions
At the time Roe v. Wade was argued, the nation was a patchwork of state abortion restrictions. Most states essentially banned the practice, while several others had loosened restrictions to allow for abortions in cases of rape, incest, danger to the mother’s health or evidence of a nonviable fetus. By 1970, New York and a handful of other states had essentially made abortion legal upon request.
“Abortion was a matter of state law,” McDonald said. “States could simply choose how they wanted to regulate it.”
Roe v. Wade was a challenge to Texas’ broad prohibition on abortion and was combined at the high court with a similar Georgia case. After two oral arguments over two years, the high court eventually decided, 7–2, that women have a “fundamental right” to privacy and abortions without excessive government restrictions. The court struck down the Texas ban and similar ones in 29 other states as unconstitutional.
The majority’s rationale relied on the 14th Amendment, which prevents states from denying any person of life, liberty or property without due process of law. The court refused to recognize unborn children as “persons” with any constitutional protections.
Recognizing abortion as a fundamental right, the court created an elaborate trimester-based system akin to legislation to determine what courts must consider when evaluating abortion restrictions. The result was effectively to mandate abortion on demand during the first six months of pregnancy and to make late-term abortions more common.
While the process took several years, the Roe v. Wade decision led to massive political polarization, McDonald argues, and it took theological objections to the practice squarely into the political sphere. For example, in 1980, then-presidential candidate Ronald Reagan courted the votes of religious conservatives, promising to nominate judges to the Supreme Court who would vote to overturn the decision.
And overturning or upholding Roe v. Wade continues to be a political rallying point during elections and Supreme Court nominations. But as McDonald said, the holding in Roe already has been weakened.
In 1992, the court decided Planned Parenthood v. Casey, allowing states to restrict abortion as long as laws do not create “an undue burden” on the right. The court retained Roe’s focus on fetal viability but made regulating abortion prior to such viability easier.
“Basically, the court said the state can throw up a lot of red tape, particularly regulations designed to persuade a woman to carry her fetus to term — such as informed consent requirements and waiting periods and so forth — as long as they don’t prevent the woman from getting an abortion,” McDonald said. “That’s not the stuff of a fundamental right.”
Chipping away at Roe v. Wade
Since Casey, the court has considered several regulations that have chipped away at the edges of the abortion right.
In 2000, in Stenberg v. Carhart, the court held that Nebraska’s partial-birth abortion law — relating to abortions typically performed during later-term pregnancies — created an undue burden on the right to abortion. But it reversed itself seven years later in Gonzales v. Carhart, upholding the federal government’s “partial-birth abortion” ban in the second trimester of pregnancy.
Among Americans in general, trimesters are key to abortion views: According to Gallup, 6 in 10 U.S. adults generally think abortion should be legal in the first three months of a pregnancy. But that support drops by about half, to 28 percent, for abortions conducted in the second three months, and by half again, to 13 percent, in the final three months, Gallup reported in 2018.
Other restrictions have been less successful. In 2016, the court struck down Texas’ law requiring abortion doctors to have admitting privileges at local hospitals and for abortion clinics to qualify as surgical medical facilities.
The Mississippi law being appealed in Dobbs v. Jackson Women’s Health is one of several by states seeking to challenge the court’s viability standard from Casey. While Mississippi set the upper limit at 15 weeks, other states have argued for different standards, such as evidence of a fetal heartbeat or signs of fetal “quickening” at seven to eight weeks.
Because of last year’s addition to the court of Justice Amy Coney Barrett, who has been on record as opposing abortion, and because of Dobbs’ potential to change abortion law, the case has attracted substantial attention. More than 1,000 friend-of-the-court briefs have been filed in support or opposition to the law.
McDonald sees a few potential outcomes to the case, most of which would allow states to continue to restrict abortion. Overturning Roe v. Wade and Casey outright would return to the states the question of whether and when abortion is legal.
The court could revisit the question of whether the fetus is a person under the Constitution and move to more of a balancing scheme as now exists in many other countries.
But even if the court reaches a compromise that does not overtly overturn parts or all of Roe or Casey, McDonald said he sees continued challenges to abortion law.
The court has “already substantially gutted Roe, the conservatives have, by applying the ‘undue burden’ test,” McDonald said. “They could just continue to let states chip away at the right through a strict application of that test.”
Kenneth Pybus is an associate professor and chair of journalism and mass communication at Abilene Christian University in Texas and a First Amendment lawyer.
Bobby Ross Jr. is Editor-in-Chief of The Christian Chronicle. Reach him at bobby@christianchronicle.org.
This piece originally appeared at The Christian Chronicle.