Since its inception, politicians, elected officials, and conservative activists have strategically been trying to overturn Roe v. Wade. Republicans have won most of the presidential elections in the first two decades after the Roe decision, and because of that Republican presidents got to fill every Supreme Court vacancy that became available during that span of time. When reflecting on this, we arrive at a clearer understanding of how we arrived at a 6-3 conservative majority Court.
In reference to an article published by Vox.com, groups like the Federalist Society have unilaterally reshaped both the politics of the Republican party and the conservative legal network that allowed past GOP presidents like George W. Bush and Donald Trump, to not only appoint justices believed to have anti-abortion views, but justices that would vote to overturn a case such as Roe v. Wade, when given the opportunity to do so.
On May 2, 2022, in an unprecedented breach of Supreme Court conventionality, a draft majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked and obtained by POLITICO. In it, Justice Samuel Alito contends, “We hold that Roe and Casey must be overruled… Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
America, a country that prides itself on adages such as “land of the free” and “sweet land of liberty,” has once again fallen remarkably short on its promise of freedom, opportunity, and individual rights. We are now faced with the reality of answering the question of “What if Roe Fell?” I know many are not shocked or surprised with the initial draft majority opinion that is potentially foreshadowing what’s to come, but that does not lessen the blow of what will happen once Roe is officially overturned.
On historical matters such as these, it is important to understand the history of how we got here. There have been a number of landmark cases that have narrowed the scope of Roe v. Wade but did not overturn it. As cited in an article published by Britannica on Roe v. Wade, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), SCOTUS held that restrictions on abortion are unconstitutional if they place an “undue burden,” on a woman seeking an abortion before the fetus is viable. In Gonzales v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act (2003), which proscribed a rarely used abortion procedure known as intact and dilation evacuation. In Whole Women’s Health v. Hellerstedt (2016), SCOTUS invoked its decision to strike down two provisions of a Texas law requiring abortion clinics to meet the standards of ambulatory surgical centers and abortion doctors to have admitting privileges at a nearby hospital; and four years later, in June Medical Services L.L.C v. Russo (2020), the court elicited Whole Woman’s Health to declare unconstitutional a Louisiana statute that was, as the majority indicated, nearly synonymous with Texas’s admitting privileges law.
The drop of water that tipped over the bucket and led us to this moment is when the Court agreed to review in its October 2021 term, a lower court’s decision to strike down a Mississippi state law, adopted in 2018, that banned most abortions after the 15th week of pregnancy, which is well before the point of fetal viability. The Mississippi state law was obviously unconstitutional under both Roe v. Wade and Planned Parenthood v. Casey, but the hopes of Mississippi lawmakers having a legal challenge that would make its way to the Supreme Court were satisfied when this abhorrent legal challenge was brought to a conservative majority bench; slated with justices that would overturn or radically diminish the scope of prior decisions that were decided on precedent.
It’s scary to think that Trump and a slew of other Republicans-along with staunch opponents of abortion rights- are essentially getting what they want, and even planned for. During the October presidential debate in 2016, Trump was asked if he wanted to see the Court overturn Roe v. Wade. As cited in an article published by the Washington Post, his response was, “Well, if we put two or perhaps three justices on, that’s what’s going to be- that will happen.
According to Guttmacher Institute, 26 states are certain or likely to ban abortion if this precedent is overturned. Of those, 22 states have laws or constitutional amendments already in place that would make them certain to attempt to ban abortion as quickly as possible.
Alabama—Pre-Roe ban, Near-total ban, State constitution bars protection
Arkansas—Pre-Roe ban, Trigger ban, Near-total ban
Idaho—Trigger ban, Six-week ban
Kentucky—Trigger ban, Six-week ban
Louisiana—Trigger ban, Near-total ban, Six-week ban, State constitution bars protection
Mississippi—Pre-Roe ban, Trigger ban, Six-week ban
Missouri—Trigger ban, Eight-week ban
North Dakota—Trigger ban, Six-week ban
Oklahoma—Pre-Roe ban, Trigger ban (effective November 1, 2021), Near-total ban, Six-week ban
South Carolina—Six-week ban
South Dakota—Trigger ban
Tennessee—Trigger ban, Six-week ban, State constitution bars protection
Texas—Pre-Roe ban, Trigger ban, Six-week ban
Utah—Trigger ban, Near-total ban
West Virginia—Pre-Roe ban, State constitution bars protection
This issue is not just about reproductive rights and abortion. This is about every individual right that we have as people that is rooted in the foundation of the right to privacy, the foundation of Roe v. Wade is at detrimental risk.
This isn’t just an attack on women. This is an attack on women of color who have had to bear the brunt of an unjust and discriminatory healthcare system.
Even though the court’s holding will not be final until it is published, which will likely be announced in the next two months, how hopeful can one be with a 6-3 conservative majority Court?
If we do not vote our democracy will continue to erode, and eventually perish.