The biggest political story in decades leaked out of the bag. On May 2, the shockwaves reverberated across the United States as the implications of the leak set off a ticking bomb, threatening to blow away millions of women’s reproductive rights to choose abortion, when news outlets reported that a rough draft of the U.S. Supreme Court decision which tilts in favor to overturn the landmark abortion case of Roe v Wade had made its way onto the media’s platform. The rough draft of the decision was leaked by anonymous sources to the mainstream public. The landmark 1973 Roe vs Wade abortion decision protects the rights of women in the U.S. to have an abortion whenever they choose to do so.
But how much does the constitution protect the legality of abortions in America or should the constitution protect abortion at all. Anti-abortionists said mostly Democrats and far-left progressives accused them of encroaching on their “right to abortion,” a right protected by the Constitution. There are heated debates over whether Roe v Wade is a constitutional right. Legal scholar John Hart Ely wrote, “Roe is not constitutional law and gives almost no sense of an obligation to try to be.”
The Supreme Court is deliberating on a Mississippi case that may overturn Roe v Wade, a 49-year-old ruling which guarantees a woman’s constitutional right to abort a child.
Should Roe v Wade be struck down the nation can expect lawsuits to last for many years to come, trying to reverse the dismissal of important elements of the case thwarting a woman’s right to choose as well as anti-abortion advocates firing back in court for women to preserve life.
“Hundreds of attorneys for abortion advocates across the country are no doubt poised to go into state courts to block enforcement of multiple state abortion laws the minute the decision comes down.” said Clarke Forsythe, senior counsel at Americans United for Life, a group that opposes abortion.
The leaked draft of the majority opinion, released last month by Politico, and confirmed as true by the Supreme Court is not the final ruling thereby making it possible the content could change. Although the leaked opinion is technically in draft form the draft speaks mightily to the vital role that U.S. courts play when it comes to democracy.
If U.S. Supreme Court overturns Roe v. Wade, the decision itself may not alone outlaw abortion but individual states would utilize a power grab to determine the procedural angle of the decision. Currently, 26 states are “certain or likely” to pass “trigger laws” to ban or limit abortion if Roe v. Wade is finally overturned, according to Guttmacher Institute, a global pro-choice research organization that focuses on sexual health and reproductive rights. Washington D.C. including 15 other states have laws in place to protect reproductive rights, including abortion access, the Institute reported. Meanwhile at least thirteen states have already pulled the trigger to ban abortion by passing the “trigger law.”
What Constitutes a Trigger Law?
A trigger law takes effect when certain legal conditions are met like if and when the Supreme Court outlaws abortion. Trigger laws are the province of state legislatures that oppose abortion. For example, states will shut down their Medicaid expansion if key portions of Medicaid benefits change at the federal level.
“The decision really places companies at the front line in terms of reproductive health care access for millions of women workers,” said Noreen Farrell, in an article published by Fortune.com. Farrell is executive director of the nonprofit Equal Rights Advocates, an agency founded in 1974, to advocate gender-related justice.
Once the leak was announced, 13 states, as stated, passed “trigger laws” to eliminate abortion if the Supreme Court nails down the final decision to legalize the ban. Abortion in the 13 states will automatically become illegal. Five additional states have laws to ban abortions after six or eight weeks, yet these states don’t have total abortion bans in effect. States like Iowa, Ohio, Georgia, Alabama, and South Carolina haven’t imposed trigger laws but the officials in these states are likely to increase bans when federal abortion laws are finalized by the Supreme Court. Prior to 1973, four states, Michigan, Arizona, West Virginia and Wisconsin had in place abortion bans that were never taken off the books. If the Supreme Court overturns Roe v Wade those bans would easily re-activate.
While there’s been unending discussion about access to abortion the Supreme Court’s decision to repeal Roe v Wade has never squared with the majority opinion of those in favor of abortion in the U.S.
Let’s look at the stats: 69% of Americans support abortion legislation. Legal experts indicate that under the constitutionally protected rights enshrined in Roe v Wade, is that states don’t have the authority to impose restrictions on abortion. Despite a woman’s right to choose abortion, still the daunting attempts from states like Mississippi defiantly pass laws against abortion in the heat of anti-abortion agenda from Republicans in Congress has sent the case back into the hands of the majority conservatives at the Supreme Court in Washington.
Does the Constitution Protect Abortion?
In its landmark ruling in Roe vs Wade, 410 U.S. 113(1973), the Supreme Court recognized the right to abortion is a fundamental liberty protected by the Fourteenth Amendment of the Constitution. Since Roe the Court has repeatedly reaffirmed the Constitution’s protection for this essential liberty, which guarantees each individual the right to make personal decisions about family and childbearing. In doing so, the Supreme Court dramatically increased judicial oversight of legislation under the privacy line of cases, thus striking down aspects of abortion-related laws in practically all the states, including the District of Columbia, and its surrounding territories.
Anti-abortionists insist that abortion is not a constitutional right according to the text of the Constitution, but it has been justified under the Fourth Amendment’s protection of privacy. By reading the Constitution, the constitutional right to abortion is nowhere in the Constitution. Most progressives are known to say the Constitution is a living document pertaining to a woman’s right to choose abortion. Then-president Barack Obama once stated, “I remain committed to protecting a woman’s right to choose and this fundamental constitutional right.”
Justice Samuel Alito’s draft opinion said that “the Constitution makes no references to abortion, and no such right is implicitly protected by any protected provision.” Alito also said the reasoning behind Roe was “exceptionally weak” and had “damaging consequences,” and he further argued that the Court “cannot set a nationwide right to abortion based on the constitutional right to privacy.”
According to Slate Magazine reporter Susan Matthews, ‘This reasoning sounds logical enough; the Supreme Court is not meant to legislate.”
Matthew writes that the right to abortion is not explicitly enumerated in the Constitution because the Constitution does not concern itself with the rights of women. As originally written, Matthews continued, the Constitution did not guarantee women the right to vote (except for white male property owners).
Among the justices who criticized Roe vs Wade and said the ruling in the landmark case upholding abortion was never based on Constitutional law here are the following names:
- Byron White
- William Rehnquist
- Antonin Scalia
- Clarence Thomas
- Anthony Kennedy
- Sandra O’ Day Connor
Matthew went on to include how the omission of abortion says less about the issue itself than about who the Founding Fathers considered people.
Any states with trigger laws, states like Arkansas, Arizona, Alabama, Michigan, Mississippi, Oklahoma, Texas, West Virginia and Wisconsin, each one is capable of imposing restrictions or outright implementing bans against abortions. The New York Times (nytimes.com)
As it seems, the reversal of Roe v Wade has the potential to execute a domino effect around the nation. Millions of women will be barred from having an abortion unless Congress pass legislation making abortion legal in every state. To accomplish this feat, any proposed bill needs 60 votes to prevent a Senate filibuster. What is needed is for Congress to win by majority vote.
Then, just maybe, Roe v Wade might survive. But it’s not looking good.
Newsblaze Senior Reporter Clarence Walker can be reached at firstname.lastname@example.org