Some historical context for Supreme Court abortion case

Written by William C. Duncan

September 30, 2021

It is likely that the most prominent case in the U.S. Supreme Court’s current term will be Dobbs v. Jackson Women’s Health Organization. The case involves a challenge by an abortion provider to a Mississippi law that prohibits performing abortions after 15 weeks of pregnancy except in emergencies.

The specific question the court will consider is whether states are permitted by the U.S. Constitution to allow abortions prior to viability. In the background, however, is a much more significant question: whether the nearly 50-year-old decision by the court in Roe v. Wade should be abandoned.

To understand what is at stake in that decision requires some historical context.

When the Bill of Rights was added to the Constitution, it was understood to limit the powers of the new national government, but not the powers of the states. Each state had its own constitution, many with similar guarantees, but our current system of seeking redress in the federal courts for constitutional violations by state or local governments had not developed at that point.

Incidentally, this reality arguably contributed to the decision of members of The Church of Jesus Christ of Latter-day Saints to settle in Utah. In an attempt to get relief from the persecutions that church members experienced in Missouri, Joseph Smith met with President Martin van Buren, who responded to the plea for help with an assertion that he could do nothing for the displaced members. That likely reflected not only political calculation, but the absence of any precedent for federal government to interfere in civil rights violations committed by states.

The most infamous of these violations, of course, was slavery and its attendant racial injustice. So, in an attempt to prevent abuses of the rights of former slaves in the wake of the Civil War, Congress enacted the 14th Amendment. Among other things, that amendment clarified the responsibilities of the states. No state could “deprive any person of life, liberty or property without due process of law” and could not “deny to any person within its jurisdiction the equal protection of the law.”

As understood now, this means that state and local governments cannot interfere with an individual’s fundamental rights or discriminate against people on the basis of their race or other protected characteristics.

Of course, this raises the question of what rights the states must not interfere with. Some are simple to identify, such as those specifically mentioned in the written Bill of Rights: freedom of speech, freedom to exercise religion, etc. Since the ratification of the 14th Amendment in 1868, and particularly since the 1960s, the court has identified other rights protected against federal, state and local intrusions.

That brings us to Roe v. Wade. Building on cases about access to contraceptives for married and unmarried individuals, the court ruled in January 1973 that states must allow abortions to be performed with no limitations during the first three months of pregnancy, and after that point (read together with a companion case), they could only be restricted if an extremely broad health exception was recognized. This meant in practice that states could not prohibit abortions at any stage of pregnancy.

Those who believed the court had overstepped its constitutional role and who wanted to protect the lives of unborn children did not acquiesce in the court’s ruling. They convinced state legislators to enact regulations on abortions, prohibitions on taxpayer funding, requirements of parental notification, health regulations on clinics, waiting periods, etc. Some of these the court allowed, others it did not.

In the late 1980s, it appeared the court would reconsider the Roe precedent. Finally, in 1992, the court heard a challenge to Pennsylvania’s regulations on abortion and narrowly determined that abortion was required by the Constitution. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the court abandoned the Roe opinion’s trimester approach, replacing it with an arguably total ban on abortion restrictions before viability and a new rule that any law that created a substantial burden on abortion would be invalidated.

In recent years, states have continued to propose limits on unrestricted abortion, including Mississippi. That leads to the decision the court will be asked to make this term.

So, what would happen if the court were to abandon the Roe and Casey precedents?

It probably depends on the individual states. The essential rule of these earlier cases was that states could not enact laws intended to limit performing abortions. If these cases were no longer in force, the states would be free to experiment with different approaches to abortion.

Some would surely limit the circumstances in which abortions could be performed, while others would ensure no limitations. New York even allows public funding of abortions, which would almost surely not be affected by the Dobbs decision, whatever its outcome.

Understanding this context makes clear that the court’s decision will likely be less far reaching in practice than is often portrayed in the news. The decision is still extremely important, particularly for the effort to protect unborn children. Responsibly responding to the decision requires understanding the stakes, which only become clear in context.

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