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Revisiting Roe vs. Wade and How It’s In More Jeopardy Than Ever

44 years and counting. But are its days numbered?

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Today (January 22) is the 44th anniversary of one of the most famous Supreme Court cases of all time: Roe v. Wade. As part of our ongoing series looking at the legal realities of Trump’s America, it’s the perfect time to look back at the case and forward to the future to consider its survival. Before we get into the weeds of constitutional law, let’s get our bearings.

In our last installment, we used immigration law to explain how executive power worked. Today our topic is reproductive right, and we’ll use it to talk about the Supreme Court. Most everyone knows that the Supremes have the power to declare something unconstitutional or say something, like being told your rights when you’re arrested or whether marriage is a constitutional right. But what does that actually mean?

Well, America is what’s called a common law country. What is “law” is decided by courts. This means two things: one, certain legal principles and doctrines don’t come from legislatures, they come from court precedent. Two, courts are the only government branch that gets to interpret laws, which includes the constitution. For instance: civil negligence is a legal concept that is based on court precedent, not written statutes, and for something you might see in a law like “criminally negligent homicide,” the courts—not the legislature or a president—get to interpret what criminal negligence means.

Courts have three tiers of power: circuit, appeals and supreme (this is true in states and federally). Circuit courts must follow what appeals courts say, and appeals courts must follow supreme courts. Appeals and supreme courts decide on cases in written opinions. Most of law school and lawyering is reading and arguing over court opinions. When crafting one opinion, courts look to previous precedent, which is what brings us back to Roe.

Roe v. Wade is a supreme court case decided in 1973. In a 7-2 (meaning seven justices voted in favor, two against) opinion penned by Justice Harry Blackmun, the court declared that women had a right to an abortion (in the first trimester), based on the due process clause of the 14th amendment. Now you, having read the constitution like a good citizen, may be confused here, since you know that the due process clause of the 14th amendment states: “… nor shall any state deprive any person of life, liberty, or property, without due process of law.” I know what you’re thinking: Roe v. Wade is based on the constitutional right to privacy. The problem is: there is no such thing.

In deciding Roe, Justice Blackmun relied heavily on an earlier case, Griswold v. Connecticut, which inferred a sort of general right to privacy from the “penumbras” of the bill of rights, and held people had a right to use birth control. Griswold took things like the third amendment (yes, the one about quartering soldiers), search and seizure rules, and other elements and assumed a right to privacy existed. There’s nothing actually in the text of the constitution even close to a right to privacy, and this is why Roe has always been on shaky footing; it was built on the legally dubious ground of Griswold, and in general, it’s a terribly written opinion.

Though the outcome of Roe V. Wade was positive for women, most also agree with the critics of Roe who rightly contend that the court created a right to abortion almost out of whole cloth. There are two schools of legal and constitutional interpretation: strict adherence to the text and the meaning as written, or going with the general spirit and intent. Liberal justices tend towards the latter, obviously, but even they agree that no drafter of the 14th, or any amendment, conceived of it being interpreted to guarantee a right to terminate a pregnancy.

Not only was Roe bad constitutional law, it was based on weird history, medical research, and relied on a trimester framework that just didn’t function well. The trimester distinctions have basically been removed and replaced with a framework based on viability in the 1992 case Planned Parenthood v. Casey. However, using viability as the point where the state had an interest in the life of a fetus which could outweigh the wishes of the mother created a moving target. Casey also set the standard that anti-abortion laws and restrictions could not place an “undue burden” on the right to an abortion.

This brings us to the current state of reproductive law in America: anti-choice legislatures have become more and more aggressive in their attempts to limit abortion access, with many seeking to test the limits of what constitutes an “undue burden.” These include parental or spousal consent law, waiting periods, forcing women to get ultrasounds, and requirements that abortion providers have admitting privileges at local hospital. Last year, in the most significant legal decision on abortion since Casey, the court struck down one such law in Texas and clarified what the undue burden test means. This decision, and other generally pro-choice decision in recent years, had five justices in support, including Anthony Kennedy.

Remember that name, because this guy may be the only one standing in between us and a drastic change to women’s rights in America. The open Supreme Court seat that Trump can now fill was already in conservative hands, so replacing the late Justice Scalia with another conservative won’t tip the balance of the court. Even so, anti-choice forces feel empowered by Trump’s election and have proposed even stricter abortion restrictions, or laws such as Ohio’s “heartbeat” bill that would nearly be abortion bans. Indeed, one such law has already been proposed federally. These anti-choice forces are obviously hoping to bring about a Supreme Court showdown and overturn Roe, but as long as there are four liberal justices plus Kennedy on the court, things should be okay. However, if we lose one of the liberal justices (not a hard thing to imagine given that Ruth Bader Ginsburg is 83), things could get scary. It would be very easy for the court to recognize that legally speaking, Roe is weak, and thus overturn it.

Abortion rates in America are at an all-time low, but of course the reason for that is the subject of vocal debate. Are people getting better at using contraception or are abortions becoming less accessible? (Spoiler: it’s probably both.) Still, women’s health is under severe threat and the Supreme Court may not be where it can find protection. The United States constitution was written by men who thought it was okay to own people, and it’s not the ideal vehicle for expanding women’s rights. Achieving that expansion should happen either by amending the constitution (unlikely) or through pro-choice legislation on the state and federal level. That’s also a tough road, but much more feasible and it can happen if we elect reasonable people who value women’s autonomy and lives. That means organizing, advocating, supporting organizations like NARAL or Planned Parenthood, and always knowing your rights and staying informed.

(featured image via Flickr/Thomas Hawk)

Jessica Mason is a writer and lawyer living in Portland, Oregon passionate about corgis, fandom, and awesome girls.  Follow her on Twitter at @FangirlingJess.

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