The Supreme Court Reconsiders Abortion Laws
Updated: Jan 13, 2022
The abortion ban in Texas sparked protests across the nation, including in Portland, where demonstrators marched for reproductive rights on October 2. (Sabrina Gröschke/Flickr)
In Texas and Mississippi, the Roe v. Wade court case from 1973 has fallen under reconsideration. Roe v. Wade has stood strong for nearly 50 years, establishing the right to abortion, but modern laws are threatening to modify it or even take away that right completely. Tension and division has escalated between the political parties, activist groups, among other groups in the long-disputed issue of abortion and its legality.
The History Behind the Case
In 1971, Norma McCorvey, better known as Jane Roe, filed the case against Texas District Attorney Henry Wade of Dallas County. Wade had prohibited abortion except to save a woman’s life. At the time, Roe was pregnant and single, and she decided to challenge the Texas criminal abortion laws. Not long after her challenge, a childless couple also attacked the laws, arguing that there could be failures with the pregnancy, unpreparedness for parenthood, and impairment to the woman’s health.
On November 22, 1972, Harry A. Blackmun sent an early draft of his opinion to the court. He stated that in the first 12 weeks of pregnancy, the choice of abortion should be strictly kept between the woman and doctor, with no interference from the government. At the time, 12 weeks (around the first trimester) was considered the only liable timeline for an abortion. Blackmun challenged that rule, creating the trimester approach of the Roe v. Wade case. This approach designated the second trimester as focused on maternal health and the third trimester as the sole time in which the state could interfere and forbid an abortion, with the exception of women’s health concerns being taken into consideration.
On January 22, 1973, the court came to a decision. The final vote, 7-2, legalized abortion, with it being noted that “unduly restrictive state regulation of abortion is unconstitutional” on the grounds of violating the Fourteenth Amendment. Several more cases emerged in the years following, posing the possibility of overturning the ruling or pushing for more rights.
Overturning Roe v. Wade
On September 1, 2021, Texas enforced a law that put a near-total ban on abortions within the state.
The Supreme Court held a 5-4 vote the day the law went into effect, declining to act on the Justice Department's request to immediately block enforcement of the measure. The justices followed up requests by President Biden and miscellaneous abortion providers to review the challenges to the law. Biden stated that Texas was “systematically denying women a constitutional right,” and thus, violating the Fourteenth Amendment.
Texas’s new law, S.B.8, bans most abortions after six weeks, at which most women are not aware of their pregnancy. This is a drastic deviation from Roe v. Wade’s cutoff, which is around 24 weeks. Law S.B.8 makes no exception for abortions performed on pregnancies caused by rape or incest. Texas Governor Greg Abbott explained that this restriction is no trouble, as he plans to “eliminate rape” from Texas.
The law also delegates enforcement to private citizens, with the opportunity to sue anyone who “aids or abets” in an abortion for at least $10,000. The Justice Department and others have stated this creates a “bounty hunter” system designed to prevent court intervention, which could prove dangerous to the case. The Supreme Court and the state of Texas are scheduled to have a hearing on S.B.8 on December 1, 2021, and there the court will make a decision to allow the law to be enforced or block it from going into effect.
S.B.8 has agitated many pro-choice activists, and their protesting has continued to gain publicity within the last month. Not only have activists been more busy, but the Texas law has sparked a new case in the state of Mississippi.
Mississippi has tried in the past to pass laws that defy Roe v. Wade: in 2018, the state attempted to pass a law prohibiting all abortions after 15 weeks of pregnancy. The law never went into effect, as a federal appellate court blocked its enforcement. However as of this year, in the light of the Texas law, the Supreme Court will consider the Mississippi law barring most abortions after 15 weeks. This case, named Dobbs v. Jackson Women’s Health Organization, is viewed as an opportunity for the justices to overturn the nearly 50-year-old model set by Roe v. Wade.
The court will be considering Dobbs v. Jackson Women’s Health Organization on December 1, and is composed of three liberals and six conservatives. John Seago, legislative director for anti-abortion group Texas Right to Life, said, “The Mississippi case is a promising opportunity for the pro-life movement to have the biggest Supreme Court win since 1973.”
Both Texas and Mississippi are scheduled for the same court date, meaning the court’s decision could be a huge loss or victory for both states, though it’s been said that results may not be released until June. The Center of Reproductive Rights is representing both Texas and Mississippi’s abortion proividers in ther cases. Many pro-choice supporters are afraid for what the future holds since the court did not shut down the initial law proposal.
The future currently remains unsteady. The only certainty is the trigger laws that will follow these two states if their laws are upheld. More and more states, especially in the deep South, may follow their lead and ban abortion completely. Women in those states who are looking to get an abortion will have to travel out-of-state to obtain safe and legal procedures.
Activists on both sides of the issue have been outspoken since the news of both laws. Their passage may lead to even more division and hostility between both sides. The future holds an air of unsteadiness, but within the next few months, the Supreme Court’s decisions will uphold or overturn a landmark case.
Sources & Further Reading