Just as the Supreme Court case of Roe v. Wade did not legalize abortion in America, so the overturning of Roe v. Wade will not end abortion in America.
In Roe v. Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. The states may not ban abortions before the fetus is determined to be “viable.” The case of Planned Parenthood v. Casey (1992) reaffirmed the Roe decision and further prohibited states from imposing an “undue burden” on a woman seeking an abortion. The Hyde Amendment, implemented in 1977 and modified under different administrations, forbids the use of federal Medicaid funds for abortions except in cases of life endangerment, rape, or incest.
Before the Roe decision, abortion was strictly a matter of state law. Thirty states prohibited abortion without exception; 16 states banned abortion except in the case of rape, incest, a threat to the life or health of the mother, and/or fetal impairment; and four states allowed abortions in nearly all cases before the fetus was viable. New York had the most liberal abortion laws, as it does now.
This past December, the Supreme Court heard oral arguments in the case of Dobbs v. Jackson Women’s Health Organization. At issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Dobbs concerns a 2018 Mississippi law called the Gestational Age Act that bans almost all abortions after the 15th week of pregnancy. The Fifth Circuit Court of Appeals, based in New Orleans, had ruled that the Mississippi law was contrary to Supreme Court precedent by seeking to effectively ban abortions before viability.
The recent leak of a draft of the Supreme Court’s majority opinion in the Dobbs case means that Americans don’t have to wait until late June or early July to see what will happen to Roe v. Wade.
According to the majority opinion, written by Justice Samuel Alito: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
There are actually ten key passages from Alito’s draft opinion that would overturn Roe v. Wade.
Now, although it is certainly true that the Supreme Court’s final version of its Dobbs decision could read completely different from the draft, this is not likely given the conservative makeup of the Court.
The reaction of the Left to the draft opinion was predictable. Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, called the draft opinion “horrifying and unprecedented.” House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) released a joint statement slamming the potential ruling as an “abomination” and “the greatest restriction of rights in the past fifty years — not just on women but on all Americans.” Sen. Bernie Sanders (I-Vt.) and Rep. Alexandra Ocasio-Cortez (D-N.Y.) called for Democrats in Congress to pass legislation to codify Roe as the law of the land. Some left-libertarians weren’t too happy either.
But regardless of how one feels about the abortion issue, the overturning of Roe v. Wade would be a victory for federalism, the Constitution, and limited government.
As former member of Congress Ron Paul has well said:
Roe v. Wade was wrongly decided, but not because the Supreme Court presumed to legalize abortion rather than ban it. Roe was wrongly decided because abortion simply is not a constitutional issue. There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion. There is no serious argument based on the text of the Constitution itself that a federal “right to abortion” exists. The federalization of abortion law is based not on constitutional principles, but rather on a social and political construct created out of thin air by the Roe court.
And as Mises Institute president Jeff Deist sums things up: “In short, there is nothing remotely suggesting a right to abortion in the text of the Constitution under even the most tortured interpretation. Thus it is purely a matter for states, falling under the Ninth and Tenth Amendments.”
The issue of abortion doesn’t trump the Constitution. What James Madison — the Father of the Constitution — said in Federalist No. 45 still applies today: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”
Although abortion is a heinous practice, the federal government should have no more to do with abortion than it should have anything to do with the violent crimes of armed robbery, rape, murder, assault and battery, child abuse, manslaughter, and domestic violence. This also means — to the consternation of many conservatives — that the federal government should have no authority to regulate or restrict state abortion laws. Crime fighting is part of the police power of the states. No wonder the Constitution mentions only three crimes: treason, piracy, and counterfeiting.
If the Supreme Court overturns Roe v. Wade, it won’t change a single abortion law in any state, it won’t prevent any state from further liberalizing its abortion laws, and it won’t end abortion in America. What it will do is return the abortion issue to the states, where it should have stayed.
