Life, Law, & Logic: The Supreme Court and Abortion Laws in the U.S.
[Image description: a person holds up a sign that says Keep Abortion Legal in front of the Supreme Court Building]
Six weeks. In a move that could eliminate fifty years of progress, the Supreme Court recently declined to block a Texas law that grossly restricts access to abortion after just six weeks of pregnancy. The law creates a cause of action allowing private citizens to sue anyone who either performs or “aids and abets” an abortion procedure after fetal cardiac activity is detected. Limiting abortion access will not only contribute to poor maternal health outcomes like higher rates of infant and maternal mortality. Restricting access to abortion will also disproportionately criminalize pregnant people of color and low-income individuals, who will have fewer legal options to access abortions. Instead of relying on complex case law that can readily be abrogated to protect people’s right to access abortions, it is imperative that Congress take immediate action to pass a federal law protecting the right of people across the country to access safe and affordable abortions.
Since the death last year of Justice Ruth Bader Ginsburg and subsequent appointment to the Court of Justice Amy Coney Barrett—who once described the Roe v. Wade decision as “barbaric”—conservative states across the country have enacted increasingly restrictive abortion laws in hope that the newly conservative majority of the Supreme Court will uphold the restrictions. In addition to Texas’ restrictive law, Mississippi also passed a law to limit access to abortions after fifteen weeks of pregnancy. The Fifth Circuit ruled in Jackson Women’s Health Organization v. Dobbs that the Mississippi law was unconstitutional because it prohibits pre-viability abortions (which are guaranteed up to at least 24 weeks gestational age by Roe and Planned Parenthood v. Casey), and thus violates a pregnant individual’s Fourteenth Amendment due process rights in exercising autonomy over their own body. The United States Supreme Court then granted certiorari in May of this year to hear oral arguments for Dobbs, and in September refused to enjoin Texas’ new law, opening the door to dismantling over fifty years of precedent protecting access to abortion. As attorney, president, and CEO for the Center for Reproductive Rights Nancy Northup warned, “the court cannot uphold this law in Mississippi without overturning Roe’s core holding.”
Therein lies one of the biggest problems of the laws regulating abortion and reproductive rights in the United States: federal constitutional protections guaranteeing access to abortions are based entirely on judicial precedent, and not on federal statutes. Seven states, including California, Connecticut, Hawaii, New York, Oregon, Vermont, and Washington protect access to abortion either through state statutes or state constitutions. There is currently no federal statute, however, that guarantees women the right to access an abortion . Instead, the federal constitutional protections that do exist have been afforded through Supreme Court decisions. Those protections have been weak even before the Court’s introduction of the “undue burden” standard in Casey, which paved the way for states to implement laws making it increasingly more difficult to have convenient access to an abortion.
In Roe, the logic linking a person’s right to abortion to the Fourteenth Amendment’s “Substantive” Due Process clause is tenuous at best. The legal doctrine of “substantive due process” first introduced in Lochner v. New York holds that the Due Process clauses of the Fifth and Fourteenth Amendments protect certain “fundamental rights” —such as life, liberty, and property— in addition to procedural rights. Although both conservative and liberal justices have since criticized the Lochner decision and the era that followed for the Court’s “judicial usurpation of power,” the Court today continues to use the invention of “substantive due process” to either grant or deny rights to individuals based on the justices’ own interpretations of the word “liberty. ” In Roe, the Court interpreted individual’s liberty interests under the Fourteenth Amendment’s Due Process clause to include a right to privacy, therefore declaring access to abortion as a “fundamental right” under the constitution.
By rooting the constitutional recognition of the “fundamental right” to have an abortion in a broad interpretation of the Fourteenth Amendment’s Due Process Clause, Roe paved the way for the current conservative majority to interpret those protections more narrowly. In addition to potentially reinterpreting protections under the Fourteenth Amendment, the Court has also left open the possibility that it could interpret the Eleventh Amendment’s sovereign immunity doctrine (which protects states from being sued as named defendants) as preventing the Court from issuing injunctions to stop state court judges from enforcing the Texas law. Furthermore, although the House recently passed a bill protecting the right to an abortion, it is unclear whether the Senate (split 50-50 along partisan lines) will be able to muster the sixty votes needed to overcome the filibuster and pass the bill in that body as well.
Without a federal statute to limit the power of states and the judiciary to completely ban abortions, the Court’s upcoming decision in Dobb and its decision not to block Texas’ abortion law from taking effect have the potential to completely dismantle Roe’s constitutional protections guaranteeing access to pre-viability abortions. Without those protections, millions of pregnant individuals in conservative states seeking to exercise control over their own bodies will be forced to either spend significant sums of their own money to travel out-of-state to obtain an abortion, or more likely will be forced to carry the fetus to term. Given that the majority of patients who have abortions are people of color or low-income individuals, abortion restrictions like those in Texas and Mississippi will disproportionately hurt some of America’s most vulnerable and traditionally oppressed populations. It’s time for Congress to step up and protect the interests of people across the nation from the dual threat of the unelected. Supreme Court and untrustworthy state governments that actively choose to disenfranchise and subordinate their own people. If Congress fails to succeed in codifying abortion protections up to the end of the second trimester of pregnancy, six weeks will determine a pregnant person’s next eighteen years.