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home : opinion : opinion August 12, 2022

6/26/2022 12:18:00 PM
After-Thoughts on Roe v Wade

L. Wayne Howard
Staff Writer


We have not published anything until now about the US Supreme Court's decision upholding a Mississippi law that bans abortions after the 15th week of pregnancy. The ruling in Dobbs v. Jackson Women’s Health Organization does NOT outlaw abortions. What it does is return decisions on the legality of abortions to the various states. Justice Samuel Alito wrote in the majority opinion:

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”  [Casey was a later decision by the Court upholding its Roe decision.]

The Dobbs in the Mississippi case is Thomas E. Dobbs, State Health Officer of the Mississippi Dept. of Health.

The decision means that anti-abortion laws in over half of the US states will now take effect or will likely become effective in the next several weeks. At this point North Carolina is not one of those states; South Carolina and Tennessee both are.

The decision on overturning a previous Supreme Court decision in Roe v Wade was also signed by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.  Chief Justice John Roberts conferred in this particular case, but stopped short of the broad swath taken by the others, issuing a written opinion of his own. The three Democrats on the Supreme Court voted against the decision.

Surely by now there is little doubt that the Supreme Court, like the Presidency and Congress, is political--and that's true of both the Republicans, who now have a 6-3 majority, and the Democrats, who have talked about changing the number of Justices to what they say would 'balance' the Court.

The President picks Supreme Court Justices, who must then be confirmed by the US Senate. President Donald Trump appointed three of the current six Republicans on the Court: Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020. Barack Obama appointed Elena Kagan in 2010 and Sonia Sotomayor in 2009. He also appointed Merrick Garland, now Attorney General, in 2016, but Mitch McConnell, GOP Senate majority leader, refused to give Garland's nomination a hearing in that election year, even though since 1900, six Supreme Court Justices had been confirmed during an election year (the approval of Barrett in 2020 made that seven; she was confirmed in late October, just over a week before the election).

While it has been much discussed, most people are not fully aware of the particulars of Roe v Wade.

Controversial from the beginning, that decision by the Court on January 22nd, 1973, by a 7–2 decision, held that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right to privacy," which the majority said protects a pregnant woman's right to an abortion.

The decision struck down many federal and state abortion laws, and added an enhanced debate concerning which methods the Supreme Court should use in Constitutional adjudication.

Ultimately, the main job of the US Supreme Court is to make certain that no state or federal laws disagree with the US Constitution.

The Roe v Wade case was brought by Norma McCorvey—known by the pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but in Texas, where she lived, abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, actually sought her out as a client, and filed the lawsuit on her behalf in federal court against local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

They were also careful to choose where the case was filed, believing that their chances of prevailing were better with a liberal majority court in Dallas. [That's one reason McCorvey (Roe) became the plaintiff of choice.] A three-judge panel of the US District Court for the Northern District of Texas ruled in her favor and declared the relevant Texas abortion statutes unconstitutional. Both parties then appealed the ruling to the US Supreme Court.

The 1973 ruling by the US Supreme Court upheld the district court's decision, but the Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and the life of an unborn child. The Court announced a trimester timetable to govern all abortion regulations in the United States. During the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician. During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life. After viability (which includes the third trimester of pregnancy and the last few weeks of the second trimester), abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the "life" or "health" of the mother. The Court also classified the right to abortion as "fundamental," which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.

In a 1992 decision (Planned Parenthood v. Casey), the Supreme Court reaffirmed its 1973 decision, although Casey overruled Roe's trimester framework and abandoned Roe's "strict scrutiny" standard in favor of a more lenient “undue burden” test.

Even before that 1973 Roe v Wade decision, elective abortion (on demand) was already available in Alaska, California, Washington, DC, Washington state, Hawaii, and New York. It remained illegal in most other states, although the laws prohibiting it were for the most part rarely enforced. A North Carolina woman went to Florida and had an abortion and was charged with manslaughter after the Florida hospital staff reported her illegal abortion to the police. She was sentenced to two years but put on probation and allowed to move back into her parents' home in North Carolina. Following the Roe v Wade decision, her conviction was overturned by the Supreme Court of Florida.

Everyone knows about the 'leaked' opinion of last week's Supreme Court decision. Well, it wasn't the first time. The Roe v Wade decision was issued together with a companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.

A law clerk gave a Time magazine reporter a copy of the decision, expecting that it would be issued by the Court before the next issue was published. Due to a delay in the decision's release, the text of the decision appeared on newsstands a few hours before it was published by the Court.

The anti-abortion forces, who rejoiced at last week's decision and vowed to continue the fight to outlaw abortion nationwide, have called themselves 'pro-life.' Those who upheld abortion rights have called themselves 'pro-choice.'

The 'pro-choice' forces have argued, based on multiple recent polls, that the vast majority of Americans were opposed to the Court's decision to overturn Roe v Wade. Some of the 'pro-life' advocates have argued that it was how the question was asked. Truthfully, in almost every case (at least every one of which we were aware) the question was straight-forward, "Do you believe the Supreme Court should overturn its Roe v Wade decision?"

We believe that most Americans, both 'pro-life' and 'pro-choice,' are against abortions as the major method of birth control. Those so-called 'late term abortions' are rare--only about 2% of the total, and many of them are related to health issues--the mother's life is at serious risk, the main one.

But the ruling allows some states' laws to do much, much more than limit abortions. Most of the anti-abortion laws do not allow for a woman or girl who is raped to have an abortion. In Oklahoma, the law says life begins at fertilization, which outlaws the so-called 'morning after' pill. Some of those anti-abortion forces are also anti-contraception. An IUD will now be illegal in Oklahoma or Arkansas if we understand their anti-abortion laws.

Justice Thomas even suggested in his opinion that the Court should also consider decisions on contraception as well as gay marriage rights, which had been dependent in part on the same standard (interpretation of the 14th Amendment) as expressed in the Roe v Wade decision.

If the Fourteenth Amendment's expression is now considered far less than the Court had previously held, it also opens the question of whether states can suppress contraception, gay marriage, and interracial marriage.  That standard and the precedent of the Roe v Wade decision had also been the basis for decisions on those issues.

North Carolina lawmakers will no doubt be asked to consider anti-abortion legislation. We hope when they do, they'll try to avoid making sweeping decisions that might include far more than they intend.

This is an OPINION piece, so I don't want idiots on Facebook arguing that this reporter should not have one. I've lived 75 years, and I've formed some opinions--based on experience and education.

My opinion on abortion has no doubt been influenced by my childhood. My father, a devout Christian and a Baptist deacon, used to kill infant puppies. That might sound like a terrible thing, especially if you don't know the whole story.

We had hunting dogs, and when one of the females was 'in heat,' Dad would do his best to keep her quarantined. Sometimes, however, accidents happened.

We were poor. Feeding the family was hard enough (both parents worked in the mill) and feeding the dogs as well as other farm animals was costly. We couldn't afford several more to feed. Nobody else wanted them. We didn't have a veterinarian anywhere close, and we couldn't have afforded to have the dogs neutered or spayed. So my father did what had to be done.

By the way, I was also an 'accident.' My two brothers were 13 and 15 when I was born. Both had been breach births, and there's no way my father would have put my mother through that again. They were born at home; I was born in a Catholic hospital. One reason is that it was already known that I, too, would be a breach birth. For religious reasons, the nuns would have saved the baby (me) instead of the mother if that became a choice. My mother survived, but barely. She was so injured that she could not attend her own father's funeral a few days later.

You may call me pro-choice. I'm not in favor of abortion but I don't believe that the decision should be mine or the legislature's or any group's. It should be a decision by the would-be mother.

I'm old enough to remember when the outcry against Planned Parenthood was that they were giving teens condoms. I also remember when the Church's teaching considered male masturbation a mortal sin (destroying the seed of life).

Whatever decisions our General Assembly makes, they should be made with careful consideration; and lawmakers need to practice on the same first rule as doctors, "First, do no harm."

---The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Lincoln Herald.



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