What’s really going on with Roe v. Wade?
Has Roe v. Wade finally been overturned? That is what some outraged media outlets, political pundits and former politicians are telling Americans — even though no such ruling has been handed down. Instead, the Supreme Court has declined on procedural grounds to temporarily block a new Texas law limiting abortions once an unborn child’s heartbeat is detected — expressly stating that it was not ruling on the constitutional merits of the law itself.
So why are abortion rights proponents raising a false alarm? Perhaps to try to sway the justices, who will soon decide a direct challenge to Roe from a Mississippi law limiting abortions after 15 weeks of pregnancy.
But what would overturning Roe really mean for the future of abortion in America? To answer that question, we must first look at what Roe said and the considerable damage the decision has caused.
The much-criticized 1973 ruling struck down a Texas law banning abortion and effectively legalized the procedure nationwide. Failing to identify explicit support for abortion in the actual language of the Constitution, the Court instead declared that a woman’s right to choose an abortion was implicit in the right to privacy protected by the 14th Amendment.
Improperly positioning itself as some sort of unofficial national abortion control board, the Court also dictated what would prove to be an unworkable “trimester framework” for determining when and under what circumstances states could regulate the newly discovered constitutional “right” to abortion.
The Court declared that the choice to end a pregnancy in the first trimester was solely the woman’s. In the second trimester, the state could regulate – but not prohibit – abortion to protect the mother’s health. The state could, however, prohibit abortion in the third trimester to protect an unborn child who could survive outside the womb, except when the mother’s health was in danger.
But in the years that followed, commonsense state laws including informed consent requirements and minimum cleanliness and safety standards for abortion clinics (uncontroversial in any other context) were invalidated by lower courts that struggled to apply the Court’s abortion jurisprudence. The Court had sowed the seeds of confusion and distortion by treating abortion like a “super constitutional” right for which normal legal rules and medical standards did not apply.
In 1992, the Court reaffirmed a woman’s right to choose an abortion in Planned Parenthood v. Casey, but also ruled that the states were entitled to more deference in decisions to regulate abortion to protect both maternal health and unborn life. The Court recognized that these interests had been improperly undervalued in earlier decisions.
But the confusion and distortion sowed by the Court’s abortion rulings have only accelerated. Significant questions exist as to what states may do in response to the growing evidence that abortion harms women, the documented dangers of abortion-inducing drugs and medical and technological advances that confirm the humanity of the unborn child and her ability to survive outside the womb at increasingly younger ages.
The Court’s abortion decisions have provided the states with little consistent or predictable guidance. For example, in recent years, the Court has upheld a prohibition on partial-birth abortion while invalidating state laws mandating minimum safety and competency standards for abortion clinics and individual providers.
The Court’s abortion jurisprudence has substituted the justices’ judgment for the democratic process and deprived Americans and their elected representatives of the right to debate and decide abortion law and policy. Overturning Roe would simply restore this power to the American people.
Overturning Roe would not result in abortion becoming illegal across the country. Instead, each state would decide for itself whether to permit abortion and under what conditions. Each state would decide which medical and other safeguards are appropriate for its residents and circumstances.
The states have historically been viewed as the “laboratories of democracy.” As we at Alliance Defending Freedom have argued, returning decisions on abortion law and policy to the states advances democratic ideals of self-government and American citizens’ right and responsibility to engage their government. This often happens best at the local level, where a full and vigorous debate is more likely to happen.
And the states have proven themselves up to this task. Since 2011, states have debated and considered thousands of abortion-related measures. Legislators have evaluated medical evidence, considered how state funding can encourage alternatives to abortion and addressed abortion’s impact on families and society. In response, some states have enacted additional regulations on abortion, while others have repealed regulations or expanded access to abortion within their borders.
Not only are state governments up to the task of deciding issues of abortion law and policy, so are the American people. It is time that they be given that opportunity.
Denise Burke is senior counsel with Alliance Defending Freedom.