The State of Roe v. Wade

The State of Roe v. Wade

Isabella Acuña ‘22

Roe v. Wade was a landmark decision by the Supreme Court that affirmed the American people’s right to choose whether or not to have an abortion and restricted states from infringing upon that right throughout the first trimester of pregnancy. In 1992, the Supreme Court affirmed this ruling in Casey v. Planned Parenthood, while also creating a standard that any abortion restrictions may not place an undue burden on people seeking abortion. Today, Roe is being challenged again in the case of Dobbs v. Jackson Women’s Health Organization, a case brought before the Supreme Court that challenges Mississippi’s recent 15-week abortion ban. Many consider this case to be the biggest one the Supreme Court has seen in years, even decades, as it has the potential to affirm or strike down the right to abortion in this country. With three new appointees to the court, the case feels even more significant as it could preview how these new justices will rule in future cases.

The History of Roe v. Wade

The case of Roe v. Wade was brought before the Supreme Court in 1970. A woman under the pseudonym Jane Roe alleged that Texas’s ban on abortions was unconstitutional and, after lower courts ruled in her favor, her case was brought before the Supreme Court. In January of 1973, the Supreme Court ruled 7-2 in favor of Roe, affirming that the U.S. Constitution protects a person’s right to obtain an abortion without unnecessary government restriction. The court leaned on the Due Process Clause of the Fourteenth Amendment, which provides a “right to privacy” that the court says protects a person’s right to choose whether or not to have an abortion. Justices Douglas, Brennan, Marshall, Stewart, Powell, Blackmun, and Burger voted in favor of Roe, while justices White and Rehnquist voted against.

After this court decision, federal and state laws across the country that restricted access to abortion were struck down, opening up access to abortion services. Before this, not all states restricted it completely, but many had laws that dictated that abortions only be available under specific circumstances, such as if the life of the pregnant person would be endangered by giving birth or if the pregnancy was the result of rape or incest. Roe v. Wade dictated that the state may not restrict abortion at all within the first trimester of pregnancy, although it may impose regulations within the second trimester that are “reasonably related to maternal health”. Once the fetus reaches viability in the third trimester, the state may regulate or prohibit abortion entirely. However, these laws must contain exceptions for cases in which pregnancy or birth endangers the life or health of the pregnant person.

Current case

Currently, the Supreme Court is hearing the case Dobbs v. Jackson Women’s Health Organization, a case that challenges Mississippi’s 2018 ban on abortions after 15 weeks of gestation. The case progressed through the lower courts, landing before the Supreme Court’s new panel of Justices in December of 2021. Justice Clarence Thomas was appointed by George H. W. Bush (R), Stephen Breyer by Bill Clinton (D), John Roberts and Samuel Alito by George W. Bush (R), Sonia Sotomayer and Elena Kagan by Barack Obama (D), and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by Donald Trump (R). The current makeup of the Supreme Court is of special interest to many, as Donald Trump was able to appoint a third of the court during his presidency. The confirmation of his appointees has been controversial, and many speculate that with this new group, the threat to Roe stands stronger than ever. 

This case comes in the wake of countless efforts to restrict abortion in recent years, including Texas’s 6-week ban (which went into effect in September of this year) and Tennessee’s similar “heartbeat bill” which bans abortion once cardiac activity can be detected in a fetus. The proposal of these types of laws is nothing new, but similar efforts in the past have all been struck down and these recent ones appear to have a greater chance of survival.

The question presented in this current case is “whether all pre-viability prohibitions on elective abortions are unconstitutional.” By this, they are questioning whether or not states are allowed to impose restrictions on abortion before the fetus reaches viability, which is at 24 weeks of gestation. Most states in the U.S. already have laws on the books that prevent abortion past 24 or 25 weeks, which is at the end of the second trimester. Should the court rule in favor of Dobbs, states will be free to impose restrictions within the first trimester, which was not an option before.

Future implications

While Mississippi’s 14-week ban is not the most restrictive law we have seen proposed, the outcome of this case could set precedent for future laws that may ban abortion earlier in the pregnancy. Texas is already enforcing a law that bans abortions after 6 weeks of gestation, which is before many women know that they are pregnant. Pregnancy tests cannot be used until a menstrual cycle has already been missed and are not accurate until 3-4 weeks after the egg has been fertilized. Abortion bans at 6 weeks give a time window of only 1-2 weeks for someone to find out they are pregnant, set an appointment, and obtain an abortion. This, coupled with travel, financial barriers, and waitlists that exist at many clinics, makes it incredibly challenging -even virtually impossible- for people to obtain abortions before the cutoff point. Because the question in this case is if there may be restrictions before the point of viability, should the court rule in favor of Dobbs, it would open up the opportunity for any state to restrict abortions at any point during pregnancy. The argument is being framed as a states’ rights issue and would give them the option to keep their 24-week bans, ban abortion at 6 weeks, ban abortion completely, or impose any other restriction. We do not yet know if these laws will be required to contain exceptions for circumstances such as rape, incest, or if the life and safety of the pregnant person would be jeopardized by pregnancy/childbirth.

Access to safe and legal abortion, birth control, and emergency contraception greatly influence women’s ability to plan their families, participate in the workforce, and lead social lives. Pregnancy, childbirth, and motherhood all carry a significant financial burden as well as social stigma, career consequences, and emotional impact. The ruling on this case will either reaffirm the right to choose or greenlight efforts to restrict it entirely.

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