Historically Speaking–Part 4: The State of Abortion Rights

By Will Bellaimey:

Will Bellaimey continues with Part 4 of our series:

Historically Speaking

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Edited transcript:

Hi, I'm Will Bellaimey, and this is the latest in our series, Historically Speaking, connecting what's happening right now to what's happened in the past.


So even as Trump's legacy and continued hold on the political aspect of the Republican Party is solidifying, or remaining solid, we're also seeing the effect of the fact that he got to choose three Supreme Court justices. The conservative swing on the Supreme Court has had a lot of effects at many different levels of Supreme Court jurisprudence, but the most obvious one is the current debate over abortion laws. And there are what are called heartbeat laws in both Mississippi and Texas that have come in front of the Supreme Court. Texas also has this kind of roundabout approach of basically allowing any citizen to sue who knows that an abortion has taken place against anyone who has aided or abetted in the abortion. And I found it a little bit surprising that the Supreme Court decided to let that mechanism stand because it seems like one that could very easily be copied by other states to kind of cause chaos. The idea that you can sue someone for exercising what, at least at the moment, is considered to be a constitutional right is both legally and practically paradoxical at best. So California's talking about, you know, using laws to let people sue gun companies or gun-shop owners. If they were following proper laws that are protected under the Second Amendment but can still be sued, that could scare them out of business, which is exactly what's been happening with abortion providers in Texas.

Now, the real question is will they seek to directly overturn the precedent in Roe v. Wade? And that may be what happens on a practical level if these heartbeat laws are upheld and Roe v. Wade is therefore directly overturned. Abortion rights are not suddenly under attack, they've been being eroded for a long time. And I think most court observers before Trump was able to put Justice Coney Barrett on the court assumed that over the next few years what you would see was basically a continuation of the chipping away at the Roe v. Wade standard that states have gotten very clever at doing since the Casey decision in 1992 basically allowed states to put limitations that don't impose an "undue burden" on women seeking an abortion. And that has been defined so broadly as to make it much, much more difficult in some states to obtain a safe, legal abortion than in others.

Justice Coney Barrett, Justice Kavanaugh, Justice Gorsuch, and then Alito and Thomas, even without Chief Justice Roberts, form a conservative majority whose whole legal careers have been premised on the fact that Roe v. Wade was wrongly decided and is based on bad constitutional principle. And so at least from a symbolic standpoint, direct overturning of that case would be a huge victory for conservatives and a huge defeat for the right to choose as a legal principle. It seems from the oral argument that the judges are pretty skeptical of the kind of distinctions on which Roe v. Wade was based. Particularly the distinction of viability.

For people who didn't ever learn anything about Roe v. Wade besides that it protects abortion, it's based on two fundamental principles, both of which are under attack in this case. The first is the idea of the right to privacy, which is not written into the Constitution but which, in a series of cases (beginning with Griswold v. Connecticut, which protected the right of married couples to obtain birth control), was established as one of those Ninth Amendment rights that's not listed in the Constitution but that people have. And it was also based on a concept called substantive due process, which has its own controversial history. In Griswold, and then in Eisenstadt, which extended the right of birth control to people who aren't married, the court basically said the liberty of deciding when to have a child and the medical steps you need to take to prevent that from happening is so fundamental that for the government to intrude upon that decision would invade the right to privacy. And I think conservatives felt that that was a made-up phrase and that it was on shaky legal ground. And to be fair, I think there are liberal scholars, including the late Ruth Bader Ginsburg, who felt that there were probably smarter ways to establish a right to abortion than basing it on the kind of shadowy right to privacy, maybe [an] equal protection approach that was just a direct application of the discrimination against women that comes from it.

[The] other prong of the Roe v. Wade decision is the viability line. So the court basically said that there is a right to privacy and that states also have an interest in protecting the potential life of a fetus. They said those two rights can be in conflict. So you have to draw a line, which I think makes common sense for most people who wouldn't support an abortion the day before birth and would support abortion the day after conception. So you have to draw a line somewhere. And the line that they chose was the point at which the fetus can live outside the mother's womb, which, at the time of Roe v. Wade, was usually considered to be about the first trimester, or three months into the pregnancy. But technology has changed. Medicine has changed. And now there are fetuses that can survive and become babies and, later, adult humans despite being born really prematurely. Both scientifically and cynically, opponents of abortion have been pointing out that the line between a viable and non-viable fetus may no longer be as clear as it once was. It will be interesting to see whether the Supreme Court, in approaching these Mississippi laws—which clearly violate Roe v. Wade—will try to take down the idea of viability, will try to take down the right to privacy, or both.

So it can feel like there's nothing that anyone can do about this, but actually there's a lot of things that people can do besides trying to, like, replace the Supreme Court, which as we know takes several generations to do. First of all, recall that the pre-Roe law was that states could decide for themselves what abortion laws existed. And so if Roe v. Wade is overturned, states like Mississippi may very quickly restrict the right to abortion, but states like California will probably continue to be havens for people seeking abortions. And so donations to Planned Parenthood or other organizations who may go from just not only providing these abortions but figuring out how to get women the transportation needed to safe places to get abortions will take place.

The other thing that could happen is federal legislation. For instance, if the federal government wanted to require that Medicaid cover abortions, that would probably fall within existing allowances around restrictions put on federal funding. To overcome state abortion laws, just like if you really wanted to overcome state voter-restriction laws, the most obvious thing to do would be to pass federal legislation that protects a woman's right to choose. And you could try to pass direct legislation that prevented states from restricting the right to an abortion, although I think that would probably face federalism challenges. The easier thing to do would be to simply attach a string to Medicaid funding that said that states' Medicaid programs need to cover abortions. And I think that would pass constitutional muster, because it's simply a restriction placed on federal funding, which has often been an approach when the federal government wants states to do things that they don't want to do. Now, the fact that that might be difficult to pass underscores the fact that despite having a majority on the Supreme Court, it's often been difficult to get legislation passed to protect women's rights to choose at the federal level.

The other thing that's worth noting in terms of policy responses to a possible overturning of Roe v. Wade is that over the last several decades, a larger and larger portion of abortions have been carried out with medication, and the Biden administration has issued a waiver during COVID that allows that medication to be shipped across states without having to go in to a medical doctor to get that prescription. And that is probably what will become the main way of obtaining an abortion in states where it's no longer legal. Now it kind of underscores how much of a rollback this is that is also the method being used [in] countries in Latin America where abortion is illegal. But that's what people in America would be resorting to.

But again, I want to focus on the difference between symbolic victories and policy victories. And I think the fight over women having access to safe, legal means to terminate a pregnancy is going to continue regardless of what the Supreme Court says. It's just gonna take place in a bunch of different venues rather than having blanket protection.


Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.

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