The infamous Supreme Court case of Roe v. Wade did not legalize abortion in the United States. Its repeal will not outlaw abortion in the United States.
In Roe v. Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. States may not ban abortions before the fetus is determined to be “viable.” The case of Planned Parenthood v. Casey(1992) reaffirmed Roe, and further prohibited states from imposing an “undue burden” on a woman seeking an abortion.
The Hyde Amendment, implemented in 1977, forbids the use of federal Medicaid funds for abortions except in cases of life endangerment, rape, or incest. Some states also provide state funds for abortions in cases of fetal impairment, medical necessity, or to prevent grave, long-lasting damage to the woman’s physical health.
After President Trump appointed Brett Kavanaugh to the Supreme Court, some states, like New York, further liberalized their abortion laws. Other states have done just the opposite.
The governor of Alabama, Kay Ivey, recently signed a bill making the performing of an abortion a felony in nearly all cases. There are no exceptions for rape or incest, only when a woman’s life is in danger.
Eric Johnston, the president of the Alabama Pro-Life Coalition, is responsible for the bill. He was recently interviewed by NPR’s All Things Considered.
According to Johnston, the Alabama law is a vehicle to get the Supreme Court to revisit Roe v. Wade and ultimately to save the lives of unborn children. He expects the law to be held unconstitutional “in the trial court and in the appellate court,” but is “hopeful that the Supreme Court will agree to review the case at that point.”
The state of Missouri is taking a different approach.
The Missouri House has passed legislation designed to survive court challenges, which would ban abortions at eight weeks of pregnancy. It includes “exceptions for medical emergencies, but not for pregnancies caused by rape or incest.” Although “women who receive abortions wouldn’t be prosecuted,” “doctors would face five to 15 years in prison.” Missouri’s Republican governor has pledged to sign the bill. Missouri’s Rep. Nick Schroer said his legislation is “made to withstand judicial challenges and not cause them.” The Republican House Speaker, Elijah Haahr, said “the measure was drafted with a legal team and based on previous court rulings across the U.S.”
I have already written about some of the states that have passed “heartbeat bills.”
Abortion supporters and abortion opponents alike have been very careless with their language. I have heard both parties say that Roe v. Wade legalized abortion in the United States. Some abortion opponents think that the repeal of Roe v. Wade would outlaw abortion in the United States. And I suspect that abortion supporters are happy to let them advance that opinion since it furthers their cause when it comes to persuading moderates to keep the status quo.
At least most Americans know that Roe v. Wade was about abortion. I have not seen any recent polls, but a Pew Research Center poll in 2012 found that only 62 percent of Americans and just 44 percent of Americans younger than 30 knew that Roe v. Wadewas about abortion. Some thought the case was about school desegregation, the death penalty, or environmental protection.
Before the Roe v. Wade decision in 1973, abortion was strictly a matter of state law. Thirty states prohibited abortion without exception; sixteen states banned abortion except in the case of rape, incest, life or health threat to mother, and/or fetal impairment; and four states allowed abortions in nearly all cases before the fetus was viable. New York had the most liberal abortion laws, and many women would travel there to have the procedure.
The repeal of Roe v. Wade would fully return the abortion to the states where it belongs. The case should never have reached the Supreme Court to begin with. Conservatives who seek a constitutional amendment to prohibit abortion are absolutely clueless about the nature and structure of government in the United States. There should be no federal legislation to criminalize abortion anymore than there should be federal legislation to criminalize murder, rape, assault, or armed robbery. These are all state matters. Likewise, there should be no attempt by the federal government to regulate or restrict state abortion laws.
It is interesting that liberals want the federal government to override the states when it suits their abortion agenda, but then they want the states to be supreme when it comes to legalizing marijuana if the federal government won’t do it.
Conservatives are no better. They want the federal government to override the states when it suits their drug prohibition agenda, but then they want the states to be supreme when it comes to prohibiting abortion if the federal government won’t do it.
Both of them should have listened to James Madison, who wrote in Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Overturning Roe v. Wade will not end abortion in the United States, but it will do several things besides make it harder for women in some states to obtain an abortion. It will partially restore federalism. It will partially limit the power of the federal government. It will show that the Supreme Court is not infallible. But it will also atone for all the sins of Trump in the eyes of die-hard Republican pro-lifers since he nominated Brett Kavanaugh to the Supreme Court.