When The U.S. Supreme Court allowed Texas’s radical abortion ban to stand last year, a collective shudder went through the ranks of those who believe the decision would ultimately lead to Roe v. Wade to be dismantled or overturned by conservative judges.
Planned Parenthood reported that, since the Supreme Court allowed S.B. 8 to go into effect on September 1, 2021, stories of heartbreak, chaos, and crisis have come out of Texas.
People who have the resources are forced to either travel long distances to get an abortion or remain pregnant. The court’s failure to stop S.B. 8 also paved the way for other states to mimic Texas with similar bills that sidestep the Constitution.
On learning that today, January 22 marked the 49 anniversary Roe v Wade of becoming law in a 7-2 decision, I read Justice Harry Blackmun’s ruling, posted by the Freedom from Religion Foundation:
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
The decision, according to Wiki, involved the case of Norma McCorvey — known by the legal pseudonym “Jane Roe”—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother’s life.
Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas’s abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed directly to the U.S. Supreme Court.
In January 1973, the Supreme Court issued a 7–2 decision in McCorvey’s favor ruling that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion.
But it also ruled that this right is not absolute and must be balanced against governments’ interests in protecting women’s health and prenatal life. The Court resolved this balancing test by tying the degree of state regulation permitted to the trimester of pregnancy which is to be aborted. The Court also required lower courts to evaluate challenges to abortion-related laws under the “strict scrutiny” standard, the most stringent degree of judicial review in the United States.
The Supreme Court revisited and modified Roe‘s legal rulings in its 1992 decision Planned Parenthood v. Casey. In Casey, the Court reaffirmed Roe‘s holding that a woman’s right to choose to have an abortion is constitutionally protected, but abandoned Roe‘s trimester framework in favor of a standard based on fetal viability and overruled the strict scrutiny standard for reviewing abortion restrictions.
The Texas decision was horrifying, but another case, due to be heard later this year could deliver a worse blow. In Dobbs v. Jackson Women’s Health Organization, the state of Mississippi has asked the Supreme Court to uphold its abortion ban at 15 weeks of pregnancy and outright overrule Roe v. Wade. Planned Parenthood, which posted a video to YouTube to mark the 49th anniversary, said:
By agreeing to hear this case in the first place — about a ban that violates nearly 50 years of precedent — and hear the nation’s highest court has made it clear that our constitutional right to abortion is at greater risk than ever before and our days of legal and accessible abortion across the country may be numbered.
Planned Parenthood is deeply apprehensive about the outcome of this case, due to be decided at the end of June:
The Supreme Court has never been so close to upholding a ban that so blatantly ignores the precedent set in Roe v. Wade. What changed? The makeup of the Supreme Court. Three new Supreme Court justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — have records hostile to reproductive health and rights. And three other justices on the court have previously ruled against abortion access. They make up a total of six out of nine justices.
And it warned that If Roe v. Wade is overturned, 26 states could quickly move to ban abortion. Some have policies that could ban abortion immediately. Others are led by lawmakers who are hostile to abortion and have a history of passing abortion restrictions.
Thirty-six million women, plus many others who can become pregnant, are at risk of losing abortion access in their states. This includes 5.7 million Hispanic or Latino women; 5.3 million Black women; 1.1 million Asian women; and about 340,000 American Indian or Alaska Native women.
I firmly believed the latest challenges to Roe v Wade were a direct result of Donald Trump’s decision to meet virtually every demand made on his administration by Christian extremists and badly-misnamed “pro-lifers.” But Xavier Bisits, writing for America: The Jesuit Review, presented a contrary argument a year ago:
The credit for pro-life victories over the past four years belongs to the pro-life movement more than it does to Mr. Trump, who called himself “pro-choice in every respect” in 1999.
During his campaign for the Republican nomination in 2016, he exhibited profound ignorance of the goals and values of the pro-life movement. Prominent pro-life leaders chastised him for saying of legalized abortion “we have to leave it that way,” and a joint letter from the leaders of pro-life groups urged the nomination of “anyone but Donald Trump.”
The Susan B. Anthony List and other groups deserve great credit for exacting pro-life commitments from him before the 2016 general election. He has kept those promises, but if pro-life leaders had not forced his hand, the past four years could have turned out very differently.
It also helped that key members of the pro-life movement joined the Trump administration. They included Charmaine Yoest, the former president of Americans United for Life, who served as assistant secretary for public affairs at the Department of Health and Human Services; senior White House adviser Kellyanne Conway; and, of course, Vice President Mike Pence. Whether or not they recognized Mr. Trump’s character flaws, they saw the value in being able to advance a pro-life agenda.
It matters not a jot whether Team Trump or “pro-lifers” have divided America over this issue. What does matter is that the reproductive rights of millions of Americans are under attack as never before in modern history.