In his landmark ruling in Dobbs v. Jackson Women’s Health Organization, six Supreme Court justices noted that the nation was grappling with this deeply divisive issue in 1973, but “Roe abruptly ended that political process.” The court has now declared that the future of abortion will rest with 330 million Americans instead of nine judges.
As this issue returns to the states, it is intriguing to consider what has changed legally and socially in the last 50 years. The comparison may hold some interesting surprises for politicians who now declare, as President Biden did, that “this fall, Roe is on the ballot.”
how little has changed
If one looks only at the state lineupSurprisingly little has changed. In 1973, 30 states prohibited abortion at any stage of pregnancy, with some exceptions for the health of the mother. In the 2022 Dobbs litigation, 26 states asked the court to strike down Roe and his successor, Casey.
Therefore, we remain deeply divided.
About 16 states are ready or expected to outlaw abortion immediately under so-called trigger laws. South Dakota, Louisiana and Kentucky have immediate bans that will go into effect. Missouri claimed be the first to outlaw all abortion except in cases of medical emergency.
Twenty-seven states have abortion protections that are expected to continue. States like Colorado, New Jersey, Oregon, and Delaware actually protected abortion without any limits on the stage of pregnancy, guaranteeing the right until just before the moment of birth.
Internationally, only seven countries allow abortion after the 20th week. While many countries have decriminalized abortion, most are closer to Mississippi than Michigan in limit abortion to the first or second trimester.
how much has changed
While Dobbs is a major reversal of long-standing precedent, much has changed legally since 1973. After Roe, the Supreme Court continued to expand protections over lifestyles and intimate relationships. In the parade of horrors that followed the Dobbs ruling’s release on Friday, politicians and pundits warned the decision could undo cases protecting contraception, same-sex marriage and other rights.
House Speaker Nancy Pelosi (D-California), Vice President Kamala Harris and other Democrats continue to claim that the court was taking the country back to the last century. The image of criminalized homosexuality, the prohibition of marriage and the limits of contraception is disconcerting, but also false.
In the Dobbs ruling, the majority of the court expressly and repeatedly rejects the application of this celebration to these other rights. In fact, it is relatively rare to see the court go to this point to proactively close the use of a new case in future cases. The court said that “intimate sexual relations, contraception, and marriage” are not affected by its decision because “abortion is fundamentally different, as both Roe and Casey recognized.” He noted that abortion is unique in dealing with “what those decisions called ‘fetal life,’ and what the law now before us describes as an ‘unborn human being.'”
The court repeatedly emphasized that those who claim the country will be put in a legal Wayback Machine are simply using the opinion “to stoke unfounded fear that our decision will jeopardize those other rights.” It could not be clearer, as the court said, that “rights related to contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have emphasized) involves only what Roe and Casey called ‘potential life’. ‘”
The court’s concurrence and Justice Brett Kavanaugh repeat, almost like a mantra: “Nothing in this opinion should be understood to cast doubt on non-abortion precedents.” Only Justice Clarence Thomas suggested that these other cases should be examined, but even he emphasized that this opinion expressly rejects that application.
Legal changes aside, there are major technological changes since 1973 that will impact the post-Roe world. About 60 percent of abortions today they are performed at home, not in clinics, using pills with mifepristone and misoprostol to abort a pregnancy: the so-called “morning after” option that is typically used in the first ten weeks of a pregnancy. In 2021, the Food and Drug Administration permanently removed the face-to-face requirement for these prescriptions and allowed women to access medications through telehealth appointments and online pharmacies. It will be difficult for states to interfere with such prescriptions, particularly if the federal government protects such access.
as we have changed
The biggest change may be us. As this issue returns to the states for citizens to decide, we are a different country than we were in 1973. Great strides have been made in advancing women and greater acceptance of people making decisions about their own lives. lives and values. While we remain divided on abortion, the public seems much more moderate and unified than the leaders of either party.
While some Democrats are expressing absolute views of abortion, and some Republicans are calling for total bansmost Americans have a more nuanced view.
In 1975, survey showed 54 percent supported abortion in some circumstances, and 21 percent said it should be completely legal; 22 percent said it should be illegal.
According to recent surveys of the Pew Research Center, only 8 percent of adults say that abortion should be illegal without exception, while only 19 percent say that abortion should be legal in all cases, without exception. However, the surveys also show that 65 percent of Americans would make most abortions illegal in the second trimester, and 80 percent would make most abortions illegal in the third trimester.
These polls suggest that most Americans will continue to live in states that protect abortion, while citizens would support limits like Mississippi. in Virginia, Governor Glenn Youngkin (R) announced an effort to limit abortions to Mississippi’s 15-week standard, but expressed a willingness to commit to that deadline. In other words, there may be room for compromise as states craft their own approaches to abortion.
Of course, none of the political or legal realities are likely to penetrate the anger and rhetoric that follow the decision.
In fact, there is a trend towards Roe’s revisionism. Roe’s supporters ignore that Roe’s constitutional logic was always controversial, even among some liberals. Justice Ruth Bader Ginsburg, for example, called the ruling “heavy-handed judicial activism” and felt the decision went too far. The original Roe actually died years ago when he was disemboweled by Casey in 1992 at Logic and Tests of It. It was later the subject of 5 or 4 decisions that created a confusing jumble of what constituted “undue burdens”.
Such revisionism is a natural part of mourning. In Shakespeare’s “Richard III,” the Queen Mother was asked how to deal with the hatred of loss. She replies: “Think your children were sweeter than they were; And whoever killed them is more disgusting than him. The same goes for Roe’s revisionism. Roe is now presented as inviolable and unquestionable on his constitutional basis, while the opinion that killed him is presented as a threat to all rights secured since 1973.
Our post-Roe world will not be written by Congress with Roe’s proposed federalization or another 50 years of conflicting court decisions. Instead, it will fall to the citizens of 50 different states in the next few years. The process might surprise us.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
Reference-thehill.com