Could Roe vs. Wade be overturned soon?

December 1, 2021

Few political issues are as controversial as abortion rights. Pro-life movements and pro-choice movements have vehemently advocated for their respective causes, where compromise does not seem in sight. The aim of this article is not to take a stance on the matter, but to discuss why abortion rights could be restricted in America in the near future.

A Mississippi law recently came into question, intending to restrict most abortions beyond 15 weeks of pregnancy. However, the precedent of the 1973 Roe vs. Wade ruling prevents states from restricting abortions before fetal viability. Fetal viability is the notion that the fetus can survive outside of the mother’s womb, where fetuses are claimed to be “viable” after 24 months of gestation.

Delving deeper into the Roe vs. Wade Supreme Court precedent, the ruling outlined a trimester framework for abortion policy. States could not restrict abortion in both the first and second trimesters. While states could not explicitly restrict abortion in the second trimester, states could implement regulations pertaining to the health of the woman. In terms of the third trimester, states were free to allow, regulate or restrict abortion, whereas most states chose to restrict late-term abortions.

The legitimacy of the Roe vs. Wade ruling came into question again in 1992. The Planned Parenthood vs. Casey ruling reaffirmed Roe vs. Wade, but also incorporated changes. Rather than a trimester framework for abortion policy, the ruling outlined an “undue burden” system. “Undue burden” indicated that the government could not administer laws too burdensome to one’s fundamental rights. This system essentially continued to protect a woman’s right to abort within two trimesters of her pregnancy. While this seemed like a win for pro-choice advocates, pro-life advocates had a victory of their own. This is because states were now allowed to implement regulations and requirements throughout a woman’s pregnancy, so long as the “undue burden” was not violated. These regulations and requirements can be viewed as preventive measures, like 48 hour waiting periods, counseling sessions, and ultrasounds to view the fetus.

Why is the recent Mississippi abortion law a potentially consequential piece of legislation? Out of several lesser restrictive abortion laws challenged in lower courts throughout the United States, the Supreme Court chose to hear Dobbs vs. Jackson Women’s Health Organization, which is the case associated with the Mississippi 15-week abortion law.

On December 1, 2021, the justices got to hear arguments regarding the Mississippi Dobbs vs Jackson Women’s Health Organization case, where the state is essentially asking the federal government to overturn Roe vs. Wade. Despite the precedent set in 1973, the Supreme Court is allowed to overturn precedents and the conservative supermajority will likely modify the ruling. We will not know a court opinion until June 2022, but we can speculate the outcome of the court decision.

The Supreme Court has a 6-3 conservative majority, where conservative justices tend to interpret the constitution as written. Conservative justices like Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch argue that Roe vs. Wade was ruled unjustly, as the constitution does not explicitly protect abortion rights. Therefore, abortion policies can be delegated to lawmakers instead. The newest justice, Amy Coney Barrett, has implied her desire to undermine Roe in the December 1 argument as well. Chief Justice John Roberts is inclined to approve the Mississippi law without overturning Roe, but that sentiment is not echoed amongst the other associate justices yet.

On the other hand, liberal justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer argued that the Roe vs. Wade precedent being overturned could diminish the credibility of the Supreme Court. Put differently, the liberal justices argue that the Supreme Court should not act as a political body, caving to social pressure. Instead, the Supreme Court should make a principled decision, as nearly five decades of court rulings have used the Roe vs. Wade precedent.

The degree to which the Roe vs. Wade ruling could be changed is uncertain. The June 2022 decision could potentially allow abortions to be restricted in the second trimester or could even completely hand over the right to implement abortion laws to states. We don’t know yet. Regardless of any Supreme Court ruling, the Supreme Court does not have the power to ban abortions entirely. It does have the power to give states the right to implement their own abortion laws.

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    Wilanyi AlvarezJan 12, 2022 at 1:52 pm

    You have a mistake in the sentence “where fetuses are claimed to be “viable” after 24 months of gestation.” In the USA, fetuses are viable after 24 weeks.