Reproductive Rights Lay in the Balance of the Supreme Court

December 10, 2021 | Molly Gahagen

Edited by Emily Mehler

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The Background:

Considering the restrictive legislation recently passed in Texas, and proposed legislation in various other states, the battle for reproductive rights is reaching a boiling point in the United States. With several current Supreme Court cases ruling on the issue, including Dobbs v. Jackson Women’s Health Organization and United States v. Texas, there is potential for a landmark ruling to reevaluate the longstanding legacy of Roe v. Wade. Unfortunately, the conservative balance of the Supreme Court threatens to skew these rulings according to a partisan agenda.

Legislation:

Conservative states have long been pushing to restrict and prohibit abortions by implementing limitations on when abortions can be done or limiting them, but perhaps no action thus far has been as bold and ambitious as the recent legislation passed in Texas. Going into effect on September 1, 2021, the law prohibited abortions past six weeks into a woman’s pregnancy and implemented a form of “vigilante justice” where enforcement is in the power of private citizens [7].On September 23, 2021, Florida proposed a similar “Heartbeat Law,” banning abortions past six weeks and allowing citizens to sue anyone who helps enable an abortion past this point [8]. As of September 1, over twenty states had passed similar legislation seeking to further pro-life policies [7].

These laws seek to target pregnancies at such an early stage where few women realize they are pregnant, severely restricting the possibility of having the option to receive an abortion. Additionally, they seek to empower private citizens to take the law into their own hands, essentially enabling a vigilante justice system to be implemented.

Supreme Court Cases:

On December 1, the Supreme Court began arguing Dobbs v. Jackson Women’s Health Organization. The case seeks to challenge the Mississippi law that prohibits abortions after the fifteenth week of pregnancy and is intended to serve as a direct challenge to the previous precedents set by Roe v. Wade and Planned Parenthood v. Casey, which established the Constitutional protection of women to get an abortion prior to a fetus’ viability [4]. The Court also agreed to hear arguments related to the Texas legislation in November but will allow the law to remain in place for the present [6].

These cases set up the potential for landmark decisions and reversals of past precedents, which establish legal protections for abortion. At such a critical moment, much is on the line for reproductive rights, and the struggle is intensified as the conservative lean of the Court leads to the questionability of the unbiased, non-partisan ruling which is promised by Article III of the United States Constitution [1]. With six out of nine of the Supreme Court justices identify as conservatives, it is expected that a pro-life agenda will impact the rulings.

Role of the Justices and Partisanship:

Justice Amy Coney Barrett’s past pro-life advocacy and statements regarding initiatives to limit access to abortion represent the role that personal opinion and agenda can play in the issuing of Court rulings [2]. The current moment represents the possibility of removing women’s rights and freedoms, and will likely be decided out of partisan logic. 

This represents an American crisis and a failure of democracy to provide impartiality and justice, illustrating the need for Court reforms. Although the Supreme Court is a longstanding institution in American government, heralded for its rulings borne of free thought and the Constitution’s Enlightenment principles, it fails to provide an adequate system of truth and ethics in modern society. As the polarization and conflict of contemporary politics have grown and deepened, they have infiltrated the very touchstones of our civilization.

The Will of the People:

The Court’s rulings also ought to be representative of the will of the people and contemporary values, seeking to establish rulings which interpret issues in the lens of Constitutional values and intentions which are relevant today. Considering the vast changes in demographics and societal norms since the drafting of the Constitution, it is important to use the values implicit in it to respond pragmatically to cases. In a recent opinion poll by the Pew Research Center, 59% of Americans responded that they thought abortion should be legal in all or most cases, representing a majority of the sample [3]. In generalizing these results to the populace at large, it is apparent that there is a large national consensus in favor of abortion, while those in opposition tend to hail from religious groups. Considering the principle of the separation of church and state, a logical ruling would choose not to consider religious constituencies but broader principles, such as Constitutional values.

The possibilities of the ruling depend on whether it offers a broad or narrow decision, which would decide the limits to which its statement would be enforced. In general, the essentiality of the moment calls attention to larger themes present in American life: the divide among groups, the questionable reality of the separation of church and state, and the viability and potential erosion of the institutions of American democracy.

The Rulings:

Considering the partisanship which factors into the makeup of the Court, the decisions offered may be from a flawed position. The 1973 Roe v. Wade decision protected women’s right to abortion under the basis of the right to privacy in the 14th Amendment. The upcoming decisions may negate this basis, thus undermining its prior validity. Limiting women’s access to abortion would violate privacy, and this would exhibit how increasing partisanship factors into the validity and logic of rulings. This illustrates how partisan agendas can factor into the calculus of judicial decisions.

Gahagen is a sophomore at Johns Hopkins University pursuing a Pre-Law path, majoring in Political Science and International Studies.

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Sources:

[1] “Article III.” Legal Information Institute. Legal Information Institute. Accessed October 25, 2021. https://www.law.cornell.edu/constitution/articleiii. 

[2] De Vogue, Ariane. “Amy Coney Barrett’s Record of Advocating for Limits to Abortion Rights.” CNN. Cable News Network, October 6, 2020. https://www.cnn.com/2020/10/06/politics/amy-coney-barrett-abortion-record/index.html. 

[3] Hartig, Hannah. “About Six-in-Ten Americans Say Abortion Should Be Legal in All or Most Cases.” Pew Research Center. Pew Research Center, September 3, 2021. https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/. 

[4] Howe, Amy. “Court to Weigh in on Mississippi Abortion Ban Intended to Challenge Roe v. Wade.” SCOTUSblog, May 17, 2021. https://www.scotusblog.com/2021/05/court-to-weigh-in-on-mississippi-abortion-ban-intended-to-challenge-roe-v-wade/. 

[5] Howe, Amy. “Major Abortion Case Set for Argument on Dec. 1.” SCOTUSblog, September 29, 2021. https://www.scotusblog.com/2021/09/major-abortion-case-set-for-argument-on-dec-1/. 

[6] Sherman, Mark. “Supreme Court Doesn’t Block Texas Abortion Law, Sets Hearing.” AP NEWS. Associated Press, October 22, 2021. https://apnews.com/article/us-supreme-court-health-texas-e926064fa5a9f5bdb5b1e336da66145c. 

[7] Spitzer, Elyssa and Ellmann, Nora. “State Abortion Legislation in 2021.” Center for American Progress. Accessed October 25, 2021. https://www.americanprogress.org/issues/women/reports/2021/09/21/503999/state-abortion-legislation-2021/. 

[8] Treisman, Rachel. “A Florida Lawmaker Is Proposing a Restrictive Texas-Style Abortion Bill.” NPR. NPR, September 23, 2021. https://www.npr.org/2021/09/23/1040132587/florida-abortion-restriction-bill-texas-ban.

Photo Credit: Guttmacher Institute