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The Death of Roe v. Wade: What Lies Ahead?

image of US map with flag and constitution superimposed

The pro-life movement appears to be on the cusp of winning its crowning triumph — the overturning of the constitutional abortion regime established by two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In oral argument last December for the case of Dobbs v. Jackson Women’s Health Organization, involving a constitutional challenge against a Mississippi law banning abortion after fifteen weeks, all of the Court’s conservative wing — with the possible exception of Chief Justice Roberts — appeared ready and willing to abandon fifty years of precedent and declare, in Justice Kavanaugh’s words, that the “Constitution is silent and, therefore, neutral on the question of abortion.” Thus, it seems appropriate to consider now how the legal landscape might shift in response to this momentous development.

In what seemed like an attempt to mollify coastal liberals, during oral argument for Dobbs Justice Kavanaugh and Mississippi’s Solicitor General, Scott Stewart, speculated as to the relatively limited fallout we might expect. Seeking to paint a rosy picture of what the future might hold, Kavanaugh asked Stewart whether, if Mississippi prevailed, a “majority of states still could or… presumably would continue to freely allow abortion.” Stewart answered that this outcome was “consistent with our view.” Earlier in the argument, Stewart suggested that a ruling in Mississippi’s favor would serve the “many people [who] vocally just really want[] to…decide [the abortion question] locally….”

But Kavanaugh and Stewart’s implication that pro-choice states could simply continue to permit abortion after the Court upholds Mississippi’s law is somewhat disingenuous. Many liberals and conservatives seem to think that if Roe is overturned, the question of abortion’s legality would automatically vest in the states. This is far from clear. Congress could, if it wished, pass legislation under the Commerce Clause that either prohibited or permitted abortion nationwide, thereby preempting state law. (The Commerce Clause is the most likely constitutional “hook” here because abortions are services sold in interstate commerce). This possibility means that the oft-repeated claim that returning abortion to the states by overturning Roe will lessen the national-level rancor surrounding abortion rests on a false premise.

When Roe was decided in 1973, thirty-one states forbade abortion in all circumstances except to save the life of the mother. Some of these states never repealed their pre-Roe abortion statutes. When the Supreme Court declares a state law unconstitutional, it is not automatically repealed; without legislative action, it stays on the statute books, unenforceable but still a part of the state’s legal code. If Roe is overturned, these “dormant” statutes could easily spring back to life. Thus, a pro-life ruling might not endanger abortion access only in states that, like Mississippi or Texas, passed anti-abortion statutes after 1973 in anticipation of the eventual overturning of Roe. Moreover, although the issue is not definitively settled, recent Court precedent suggests that its decisions about federal law have “full retroactive effect,” at least in civil cases. This raises the possibility that if a plaintiff sues an abortion doctor for conduct that took place before Roe was overturned pursuant to state law, the defendant might not be able to defend herself by claiming that her behavior was constitutionally protected at the time.

One particularly interesting exchange in the Dobbs oral argument concerned the possible effect of overturning Roe on other seminal cases involving reproductive and sexual rights, such as Griswold v. Connecticut — which declared that the right of married couples to buy and use contraceptives is protected by the constitution — or Lawrence v. Texas and Obergefell v. Hodges, which struck down bans on homosexual intimacy and same-sex marriage, respectively. Justice Barrett asked Solicitor General Stewart whether a decision in Mississippi’s favor would have adverse effects on these other decisions. Stewart replied that two features distinguish them from Roe: “Negative stare decisis considerations,” and that none of those other decisions “involve the purposeful termination of human life.” In saying this, Stewart was suggesting two lines of reasoning that the Court’s conservative majority could use to overrule Roe: that Roe doesn’t have the same precedential weight as other “watershed” decisions like Brown v. Board of Education because key elements of Roe were abandoned in Casey, and that states have a compelling interest in fetal life.

However, in a later colloquy between Stewart and Justice Sotomayor in which the latter noted that all of these decisions rested on “substantive due process,” Stewart denied that Griswold, Lawrence, and Obergefell were vulnerable on the grounds that Mississippi is “quite comfortable with Washington v. Glucksberg and how it analyzes substantive due process.” By “substantive due process,” Sotomayor and Stewart were referring to a Supreme Court doctrine according to which the Due Process Clause of the Fourteenth Amendment protects certain substantive rights, such as privacy or autonomy, and not merely procedural rights to judicial process when the government deprives persons of life, liberty, or property. In Roe, the Court held that the Due Process Clause guarantees a right of privacy that includes the right to abortion. The rationales for Griswold, Lawrence, and Obergefell all relied to one extent or another on the substantive due process doctrine. Nevertheless, the very idea of substantive due process is something of a bugbear among conservative lawyers and legal scholars, including some Supreme Court Justices. Thus, Sotomayor was pointing out to Stewart that should the Court overturn Roe by rejecting substantive due process, the other decisions on sexual and reproductive rights could easily fall with it.

Stewart’s reply was to point to the Glucksberg case, decided twenty-five years after Roe, in which the Court held that only rights that are “deeply rooted in the nation’s history” are protected by the Due Process Clause. Stewart was in essence saying that Mississippi was not arguing for abandoning substantive due process, so long as the Court adheres to the Glucksberg standard. By that standard, according to Stewart, abortion rights are not among the rights protected by substantive due process, since abortion rights do not have deep roots in America’s history. The obvious problem with this reply is that rights to birth control, homosexual sex, or same-sex marriage are also not deeply rooted in the nation’s history — a point that Sotomayor began to articulate before being interrupted and sidetracked by Stewart.

This discussion has ventured into the constitutional weeds in order to illustrate the point that the ramifications of the Court’s ruling in Dobbs will crucially depend upon the precise nature of the reasoning it uses to support it. If the Court decides to overrule Roe on the narrow ground that the state has a compelling interest in fetal life, then other substantive due process rights may survive. But if the Court uses Dobbs as an opportunity to affirm and apply the Glucksberg standard, or even to call the doctrine of substantive due process into question, then these other decisions may be left vulnerable to challenge. In general, the Court likes to decide issues on the narrowest grounds possible, but there are exceptions to this rule. Moreover, as I mentioned, there are a number of Justices who are openly hostile to substantive due process as a whole. In that context, a Glucksberg-based decision that preserves substantive due process but potentially affects a host of other important cases might appear to some Justices like a reasonable middle ground. We can only speculate.

The ramifications of Roe’s death are unpredictable. In this column, I have emphasized some possible consequences that add up to a darker picture of life after Roe than even many left-leaning commentators predict. However, there are other possible effects that may be less desirable to the pro-life side. Although studies suggest that overturning Roe will, in the short term, appreciably depress abortion rates — mainly by increasing travel distances between pregnant women and abortion providers — the longer-term effects are less clear. In the years leading up to Roe, many states were liberalizing their abortion laws. As millions of women find themselves wholly cut off from access to safe abortion services, that trend may continue if Congress does not act. In the fullness of time, it is quite possible that the pro-life side will find the death of Roe a Pyrrhic victory.

Abortion and the Artificial Womb

This past week, scientists have shared that they have created the most successful artificial womb yet. Lambs have been born healthily after spending up to half of their gestation in a simulated uterus.  

For now, this technology is proving to be intriguingly successful in lambs. To keep hormones, temperature, oxygen, and other life-sustaining factors stable for humans will be quite a hurdle, but scientists and spectators are already hypothesizing about what this could mean farther down the line (specialists estimate testing this technology on humans would be about three years in the future). Artificial wombs could be of help not just with premature births on the cusp of viability, but perhaps even earlier. Perhaps, artificial wombs can be of use soon after conception, or are the next stage of development for so-called test tube babies. In that case, we could develop children without the need of a woman’s uterus altogether!

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On Forcing Women to Share Custody with their Rapist

As the intersection of religious, political, medical, feminist, and moral debate, abortion is one of the most divisive ethical issues in our nation. Pro-choice supporters argue that women have the right to determine the fates of their own bodies whereas pro-life activists consider abortion to be murder. An issue that looms around the discussion of abortion is the circumstance of conception from rape. Pro-life individuals may shy away from the issue or even admit rape as an exception. However, websites like Students for Life advise their readers to stand firm in opposition of abortion, questioning rhetorically, “The perpetrator must be punished to the fullest extent of the law, but does the helpless child, who is guilty of no crime, deserve death?” Claiming that abortion perpetuates the “pattern of violence and victim-hood,” Students for Life suggests that the rape victim bears the responsibility to break the cycle of violence. However, does the cycle really end for the women of the estimated 17,000 to 32,000 rape-related pregnancies who choose to keep their children? Women are not only punished for their abortions; in the United States, women may be forced to share their children’s custody with their rapists.

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The Ethical Aftermath of the Planned Parenthood Shooting

On Friday, November 27th, a man named Robert Lewis Dear Jr. entered a Planned Parenthood in Colorado Springs, Colorado, with a semiautomatic rifle. He killed three people: a police officer and two civilians. After hours of a violent standoff with the police, Dear was eventually brought into custody. Though mass shootings have garnered much public discussion recently (after news surfaced that we have had more than one mass shooting per day in 2015), the Planned Parenthood shooting has received a particularly high amount of media attention.

There are several ethical components brought forth by the shooting. Two notable ones are: 1) Should society blame violence on an atmosphere of verbal hostility? 2) Should society view Planned Parenthood as the face of abortion?

Many have argued, like Washington Post Columnist Ruth Marcus, that, “Republicans deserve some blame for the Planned Parenthood shooting.” Marcus argues that, “words- extreme language and overheated representations- have consequences” and that the heated rhetoric that she argues come from some pro-life Republicans inspired Robert Dear’s attack on Planned Parenthood. Father Frank Pravone, the national director of Priests for Life, rejected this accusation in his Op-Ed for Fox News that the pro-life movement would support any violent action. He argues that though the pro-life community consistently condemns all attacks at abortion facilities, they still receive most of the blame. He also rejects the accusation that describing abortion as “child killing” is creating a climate of violence. It is his belief that abortion is murder and to change his language would be abandoning his lifelong attempt to protect unborn babies.

This argument over language leads to the next question. Is the focus on Planned Parenthood as the face of the abortion issue legitimate? Both pro-choice and pro-life advocates seem to have an interest in deflating and inflating, respectively, the importance of Planned Parenthood in regards to abortion services. For example, Planned Parenthood reports that only 3% of their services provided are abortions and have been widely criticized for distorting their numbers to arrive at this number. Similarly, some pro-life advocates responded with a claim that 94% of Planned Parenthood’s pregnancy services are abortions, a claim that is similarly criticized. However, a third party fact checker, Politifact, says the most accurate statistic is that an estimated 12% of Planned Parenthood customers receive abortion. Do these examples of inflating/deflating Planned Parenthood’s abortion services show that we have a tendency to alter the truth to benefit a specific political agenda?

Can language incite violence? If it does, is it ethical to place limitations on language? How do we address our tendency as people to distort facts in order to benefit politically?

A Pro-Choice Argument for Investigating Planned Parenthood

Long marked by intense and polarizing opinions, the abortion debate has found its latest controversy. The topic in focus? Fetal tissue donation, in which researchers pay abortion providers for tissue samples from aborted fetuses. Two videos, both published by the Center for Medical Progress, an organization backed by pro-life group Live Action, have brought the issue to the forefront of public debate. In the first widely-circulated video, a Planned Parenthood employee discusses prices for fetal tissue samples, in addition to describing the abortion procedure in explicit detail. A second video, also depicting a conversation about buying fetal tissues for research, shows one Planned Parenthood employee joking that she wanted “a Lamborghini” as compensation.

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