Roe v Wade: Legal experts see limited opportunity to challenge court ruling


Joe Biden renewed his criticism of the Supreme Court on Saturday, a day after the justices issued a landmark ruling that overturned a ruling that had guaranteed the constitutional right to abortion for nearly half a century.

“The Supreme Court has made some terrible decisions,” Biden said at an event signing the bipartisan gun control bill last week. The president said he and first lady Jill Biden knew “how painful and devastating the decision is for so many Americans” and promised his administration would focus on how states implement the decision.

But the White House has limited options, so constitutional and legal experts warned Saturday that there was no short-term way outside of statutory law to restore federal guarantees to women’s right to abortion after the Supreme Court of the United States overturned Roe v Wade on Friday.

Opportunities to challenge the judges’ decision or resubmit constitutional law arguments based on equal rights are for now limited.

“We’re in a long, tangled, chaotic and, in terms of human suffering, terribly costly fight,” says Harvard constitutional law professor Lawrence Tribe, who described Friday’s decision as “unprincipled.”

Tribe told The Guardian that it may take generations to fully restore abortion rights, but there may be opportunities to minimize the effects of the ruling.

One of them could be Congress giving powers to the Department of Health and Human Services or the Food and Drug Administration to override state laws. That topic came up on Friday when Attorney General Merrick Garland said in a statement stating mifepristone cannot be banneda drug used to cause an abortion, based on a disagreement with the federal government about its safety and efficacy.

Mifepristone and misoprostol, another drug used to induce abortion, have been approved by the FDA for use in the first 10 weeks of pregnancy. But some states, including Louisiana, have adopted laws to prohibit doctors from mailing medications.

In a statement, Garland said the Justice Department “strongly supports efforts by Congress to codify the reproductive rights of Americans, for which it retains the authority.” But federal law is unclear as to whether states can ban the drug, and the question would likely return to the same court that issued Friday’s ruling.

Some scholars have gone back to Roe v Wade to find where that ruling gave the current majority on the bench room to overturn the decision.

One idea that has emerged is that the original ruling spoke of freedom but not equality.

Attorney General Merrick Garland said the Justice Department
Attorney General Merrick Garland said the Justice Department “strongly supports efforts by Congress to codify the reproductive rights of Americans.” Photograph: Evelyn Hockstein/Reuters

“It really is silly to try to explain why the ruling wouldn’t have gotten the highest grade in a constitutional law class,” says Tribe, quoted four times in Friday’s ruling. “The court should have talked about equality, no doubt, but it also talked about liberty, and liberty embodies the idea of ​​equality.”

One avenue that might be more fruitful for redressing abortion rights is in state constitutions that have their own protections around liberty and equality.

“I hope that creative litigants will challenge state laws that prohibit abortion on the basis of the state’s own constitution. If the state courts, which in many cases are elected, look at this through the same lens that the supreme court did, they will get nowhere.

“But it is possible that in some states there are more liberal, progressive or pro-gender equality state courts that would interpret the state constitution to give women more rights than they are given under the federal constitution,” Tribe added. .

Kevin O’Brien, a partner at Ford O’Brien Landy, a boutique law firm, noted that Roe v Wade was written 50 years ago, a long time ago in terms of constitutional law.

“It was written in a benignly liberal age where there were no ideological tensions. Under the Warren court, the writing was a bit more informal and the justices wrote a wide sweep. They brought Roe under this rather vague notion that there was an implicit privacy interest in the constitution.”

O’Brien quoted the late Justice Ruth Bader Ginsburg, who noted that Roe vs. Wade was argued over the right to privacy, rather than women’s rights. “Roe isn’t really about the woman’s choice, is it?” Ginsburg once said. That was, of course, until she stopped doing it. “It didn’t seem to require much discussion among civilized people that people had autonomy in their own bedrooms and that women had the right to control their own bodies, but then we got this revolution in thinking among conservative judges.”

As the federal and some state governments work to get around new legal barriers, private companies have signaled that they will try to close the gap. Some of the most recognized American companies, including JPMorgan Chase, Meta (parent of Facebook and Instagram), Walt Disney, Tesla and Apple, have come forward to indicate that they will extend coverage to workers who need access to legal and safe abortions.

Conservative lawmakers have warned that companies could face legal action if they support employee abortion trips. Citigroup was warned by a Texas lawmaker that under that state’s abortion law, the bank could face criminal charges. In Judge Brett Kavanaugh’s concurring opinion in Friday’s court ruling, the Trump-appointed judge said states cannot prohibit their residents from traveling for abortions.

But, as Tribe points out, beyond legislative law guaranteeing the right to abortion without which few believe possible, options are limited. “If you mean resorting to full restore before failure, that can take generations,” she says. “If you mean minimizing the damage of the bug, taking steps on the side to reduce the devastation of the bug, then yes, that certainly can be done.”



Reference-www.theguardian.com

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