Fact Check: Overturning Roe v. Wade Will Not Ban Abortion
It returns the matter to elected branches of government.
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Last week, Politico published a draft of a majority opinion for the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The draft opinion is written by Justice Samuel Alito, and would overturn both Roe v. Wade and Planned Parenthood v. Casey if it holds (draft opinions have no legal force or effect, and opinions are final only when issued by the Supreme Court).
In the aftermath of this leak, social media was filled with people claiming that the Supreme Court was poised to “ban abortion.” A Variety article headline proclaimed “Howard Stern: Supreme Court Justices Who Ban Abortion Should Raise Every Unwanted Child.” Australian political commentator and former diplomat Bruce Haigh referred to “The US Supreme Court decision banning abortion” in a tweet. Another viral tweet reads: “The Supreme Court won’t force you to wear a mask in a pandemic — but it’ll force you to bear a child.” A number of other posts with the same claim can be found across social media. A 2019 public opinion survey found that nearly 66 percent of respondents similarly believe that overturning Roe and Casey would outlaw abortion in the United States. Those views are not accurate. Overturning Roe returns the matter to the elected branches of government.
Assuming the votes remain unchanged and a majority of justices vote to overturn Roe and Casey, such a decision would not make abortion illegal in the United States. Roe banned any abortion restrictions in the first trimester of pregnancy but allowed for restrictions in the second trimester and for prohibitions (with exceptions) in the third trimester.
Planned Parenthood v. Casey later replaced the trimester framework with one based on viability. In Planned Parenthood v. Casey, the court noted that the point of viability had shifted to earlier in pregnancy than at the time of Roe, and could continue to shift as medical technology advanced. Currently, the point of fetal viability is thought to be around the 23rd week of pregnancy. With viability as the new line, the court held that states could enforce restrictions and prohibitions after viability, but restrictions on terminating pre-viable pregnancies could not pose an “undue burden” on the woman seeking the abortion.
A law is considered to have an undue burden if it, either through intent or merely in effect, creates substantial obstacles in the process of getting an abortion.
Overturning Roe and Casey would allow states (or potentially the federal government) to ban or restrict pre-viability abortions as long as the law was rationally related to a legitimate government interest. Such decisions would fall to state lawmakers and to members of Congress.
If the Supreme Court holds that the Constitution doesn’t speak to abortion one way or the other, Congress could choose to pass a law either protecting or banning access to abortions—though there may be separate legal obstacles to whether Congress has the authority to regulate abortions at the federal level. Senate Majority Leader Chuck Schumer said he plans to bring to vote a bill that would ensure access to abortion in all 50 states for all nine months of pregnancy. A similar bill was filibustered by Senate Republicans and Democratic Senator Joe Manchin in February. The likelihood of this bill, or any others on the subject, passing the House and the Senate in our currently very closely divided Congress is slim.
At the state level, 13 states have “trigger laws” in place that would outlaw elective abortions once Roe is overturned, nine have pre-Roe abortion bans on the books that could be enforced—though lawmakers in Wisconsin and Michigan have already said they will not be—and 17 states have passed restrictions or bans post-Roe that could be enforced. Some states have both a trigger law and a pre- or post-Roe law on the books, bringing the total number of states that would have some sort of law banning abortions to 18—though that includes Wisconsin and Michigan—and five states that have abortion restrictions that would come into effect.
Sixteen states and the District of Columbia have laws on the books protecting access to abortion. Four of these states and Washington, D.C., guarantee abortion access throughout pregnancy. The remaining 12 have a viability cutoff. Democratic leaders in California, where abortion is protected by law, are seeking to add an amendment to the state constitution guaranteeing access to abortion as a right. Vermont has a constitutional amendment creating a right to abortion that has passed through its state legislatures and will appear on the ballot for voters to decide in November.
The Supreme Court will not ban abortion in the United States, even if the majority decision in Dobbs ultimately reflects the views in the leaked draft opinion. It returns the authority to determine the legality of abortion to elected officials.
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Well, it would effectively ban abortion in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. "Returning the issue to the elected branches of government" and "the laboratory of the states" can work fairly well when we're talking about certain economic and regulatory policies. History has shown that it's a crap way to deal with fundamental human rights.
The writer's claim that overturning Roe v. Wade won't ban abortion is fatuous and intentionally dishonest, though it does honestly reflect the religious right's views on the matter.
The fact is, of course overturning Roe v. Wade will result in result in banning abortions in at least the 14 states dominated by religious right wingers, and possibly others.
And that not only is a proven fact not subject to any debate, but it will also violate the 14th Amendment, which clearly states in Section 1:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This amendment not only means exactly what it says - take that, "original constructionists", who ignore it for purposes of banning abortion - but it was explicitly enacted by the Congress and the States in 1865 as a direct repudiation of the Civil War and the entire notion that a Citizen of the United States has Constitutional rights in some States but not in other States, at the mere whims of State legislatures.
The principal basis of Roe v. Wade was that State bans on abortion violate the 14th Amendment which explicitly constrains States from restricting the rights of their Citizens.
The fact that the Constitution doesn't explicitly state that Citizens have a right to abortion is similarly fatuous and dishonest. The Constitution does not guarantee the right of Citizens to own cars, or to chew gum, or prefer a given sexual identity, or to marry whom they choose, or to be a member of this party or another or none at all, or to eat seafood or Mexican food or watch violent films, and gazillions of other matters that most Americans consider entirely private decisions that are beyond the right of the Government, at any level, to legislate.
This nation was founded on the notions of "inalienable rights" that do not arise from any government at all, and which are not a "privilege" that can be taken away by Government. but arise and exist from the fact of being persons.
Here is my prediction: the current court will indeed vote to overturn Roe .. and then another court, at some indeterminate date, is going to reverse the reversal of Roe. The American people wholly support the notions of "right to privacy" coming not from the US Constitution but from God himself, or whomever one believes is the source of all natural human rights. In the long run the anti-abortionists have to lose. There is no alternative, unless we as Americans agree that we are no longer a Free People, and are instead Subjects of whatever right wing jurists and legislatures and governors who happen to be elected by a bare majority at one point in time try to tell us otherwise.