Upon Further Review: Fallout from Overturning Roe v. Wade
A Review of What Happened and Where We Stand
On Friday, June 24, 2022, a 5 to 4 ruling by the Supreme Court of the United States overturned the landmark Roe v. Wade decision of January 22, 1973 and the Planned Parenthood of Southeastern Pa v. Casey decision of June 29, 1992. The Roe vs. Wade ruling of 1973 is probably the most famous, possibly the most impactful, and certainly one of the most contentious decisions that the U.S. Supreme Court has handed down since it was established by Article Three of the U.S. Constitution and implemented by the Judiciary Act of 1789.
Briefly, MMitM assesses the left- and right-leaning perspectives as follows:
“The Left” – This is a healthcare and an autonomy issue. Denying a woman the right to an abortion is denying a freedom that could affect her health. It should never be up to lawmakers to decide what an individual can and cannot do on behalf of their own health. In addition to jeopardizing the mother’s physical and mental health, denying access to abortion services takes away autonomy, agency over their bodies, and freedom to live with dignity. The liberal/left perspective primarily relies upon elected officials from the Democratic Party to legislate on their behalf.
“The Right” – This is an issue that involves the lives of at least two individuals, the mother and the unborn child. Scientifically, the moment an egg is fertilized is the moment that a new organism, having DNA distinct from the mother, exists in the form of an embryo that is a living but unborn human child. While it is important to respect the rights of the mother, the conservative/right believes that the unborn child also has rights that must be respected. As a living human, the unborn child has the same unalienable rights to “life, liberty, and the pursuit of happiness” called out in the Declaration of Independence. Allowing the mother to have access to abortion services takes from the unborn individual autonomy, agency over their bodies, and freedom to live with dignity. Just like an infant, that unborn child cannot protect or defend himself or herself, and so it is imperative that we have laws that provide protections. The conservative/right perspective, of course, primarily relies upon elected officials from the Republican Party to legislate on their behalf.
Can We Meet in the Middle?
Let’s start by proposing the following as common ground on which to base further discussion: there is a robust legal system that we, the people, must rely upon to settle disputes. It is not a flawless system, but it is essential to ensure that the law, as it is written, is appropriately levied upon the citizenry.
Part of the MMitM Mission is to consider compromises and solutions that offer hope of building unity. The most vocal advocates on either side of this issue are going to paint this as “women have the right to choose” versus “the government should not be able to legalize murdering unborn people.” There is no path to a solution or to a compromise with such polarized stances. Thus, as relevant as they are to the morality of the issue, those stances really have no place in a discussion about policy and how to move forward in a more unified way.
It is evident that the only way in which people can thrive in the face of such divisive social issues is in a more de-centralized approach to government. On the topic of de-centralization in general, does it make sense to impose all of the same laws and regulations on both a rural conservative community and a densely populated urban progressive city? Does it make sense for a conservative Christian to be governed by the laws of a progressive liberal, or vice versa? To meet in the middle, people should be permitted to establish their governments and to legislate on a more local level.
We hope to illustrate in this article how this issue revealed that de-centralization really does work pretty well.
Taking a Step Back
As mentioned in the opening paragraph, the Supreme Court delivered the decision to overturn Roe on June 24, 2022. An important component of the story that now goes overlooked is that this monumental decision was leaked weeks before being officially issued. Justice Samuel Alito, Jr. drafted an opinion on the case and someone in the inner circle of the Supreme Court of the United States of America leaked the impending decision. By the time the decision was formally issued, the splash from Alito’s draft opinion had already been made and the ripples across the social and political waters were well in motion. Widespread public outrage and protests ensued before the decision was formally completed. An armed man even showed up to the home of a Supreme Court Justice with the intent to murder him because the assailant was upset about the leaked opinion.
The motivation for the leak is still unclear, as is the identity of the perpetrator, even after an eight-month investigation. The leaker demonstrated an utter disregard for the justice process. Regardless of the motivation, one can assume that the leaker was more concerned with the outcome rather than the process established to rule on legal matters. It is the legal process that was the casualty of the leak, but the outcome included threats to and attacks on the judges that ruled in favor of overturning Roe while those reporting on the leaked opinion remained devoted to their detachment from the facts of the actual content in the document.
Misleading Rhetoric and the Perceived Fallout
The mainstream media would have you believe that the Supreme Court opinion to overturn Roe v. Wade is some right-wing idealogical ruling designed to steal rights from women. That media is failing its viewers and readers by failing to convey the actual basis for overturning the Roe opinion, which is that the original Roe opinion was based on an extremely weak argument that abortion is an implied right based loosely on constitutional text that grants the right to privacy implied by the First, Fourth, Fifth, Ninth and Fourteenth amendments.
The elected leader and voice of the Democratic Party, President Joe Biden, demonstrated a misunderstanding of the decision when he said shortly after the leak, “The idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child, based on a decision by the Supreme Court, I think goes way overboard.” These sentiments were echoed across the political and cultural landscape. In fact, Justice Alito’s opinion does not state that nobody gets a say on abortion. Rather, it cements that the decision is properly reserved to the states and the people rather than the court. The President (and most of the media reporting on the subject) got that backwards.
In a May 3, 2022, interview about the leaked decision with New York Times reporter Jodi Kantor, Chris Hayes of MSNBC said “The perception from the outside is that the anti-Roe Justices are sitting around waiting for their colleague to die and then be replaced with a new person. So, even before her body is in the ground, they can get to planning their long-desired goal of overturning Roe.” Mr. Hayes continues in that interview to accuse the “anti-Roe” justices of scheming to deceive the public about their intent to review Roe in the first place. Ms. Kantor wisely pushed back on this rhetoric and provided a perspective that was much more grounded in reality.
The rhetoric persists over a year and a half later. In a more recent opinion piece, Representative Katherine Clark, House Democratic Whip, published a scathing account of “how much freedom we have lost.” She writes: “The overturning of Roe in June 2022 meant a swift and brutal transition for those living in states governed by extremists. Health centers were shuttered. Doctors faced jail time for honoring their Hippocratic oath. And patients were abandoned.” These types of incendiary remarks are intended to and have succeeded in continuing to fan the flames of division on this topic. There is never any discussion of a path to resolution or compromise that has any hope of success (it is almost like they want society to be divided… hmm…). And there is never any discussion of the merit of the Supreme Court decision, so why don’t we give it a shot?
Breaking Down the Alito Opinion
Now that ample time has passed for the noise of the media and protesters to die down, let us consider whether there is any actual fidelity to the law or the constitution in the original Roe v. Wade decision or in the decision to overturn it. What did the actual Supreme Court ruling to overturn say that was so controversial? Let’s take a look at the document to find out.
To start, the ruling states, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
In the ruling, a critique is offered of the original Casey opinion for failing to address whether the Constitution confers a right to abortion and for reaffirming Roe based solely on stare decisis (an adherence to precedent). The ruling points out that stare decisis demands “an assessment of the strength of the grounds on which Roe was based.”
A review is provided of the standard used to determine whether a particular right is protected by the Fourteenth Amendment. Since the Constitution does not explicitly refer to abortion rights, Roe leans on a perceived implication associated with the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
An examination is offered of whether the right to obtain an abortion is deeply rooted in this Nation’s history and tradition and whether it is an essential component implicit in the concept of ordered liberty. Note: Washington v. Glucksberg provides precedent for assessing a “right” that is not expressly mentioned in the constitution. The Court determined that abortion meets neither of these criteria:
With respect to being deeply rooted in Our Nation’s history, the right to abortion fails to meet this criterion. Alito points out that the history and tradition of the Nation was actually to criminalize abortion. At the time of Roe, a substantial majority still prohibited abortion at all stages except to save the life of the mother. Justice Alito notes that, in 1868, three-quarters of the states enacted statutes that made abortion a crime. It was criminalized in colonial America and by English law dating back to the 13th century. Based on history and tradition, the Roe decision does not pass muster. Precedence demands evidence of that history and tradition if we are to imply that a right is conferred by the Constitution. Counter arguments exist that say we do, in fact, have that history – just not the legal history, which is the only basis Justice Alito can logically use in a legal opinion.
But what about the “ordered liberty” angle? Justice Alito points out that Our Nation’s historical understanding of ordered liberty “does not prevent the people’s elected representatives from deciding how abortion should be regulated.” So, this issue is on the lawmakers, isn’t it?
A deep analysis is offered of the “underlying theory on which Casey rested - that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for ‘liberty’.” And consideration is given of “whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents” and a determination is made that abortion “cannot be justified as a component of such a right.”
The ruling also discussed in detail the five factors that should be considered when overruling a precedent:
The nature of the Court’s error,
The quality of the reasoning,
Workability,
Effect on other areas of law, and
Reliance interests
The ruling concludes by noting that “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”
This ruling is not an idealogical decision. It is actually a matter of the law, and the overturning appears to be based on intellectual rigor as well as good faith to the constitution.
Where We Are Today
Factoring in the populations of Washington D.C. and Puerto Rico, abortion is accessible to 76% of the U.S. population within the state in which they reside, although there are gestational limits in place for 44% of those with access. So, the overturning of Roe did not exactly upend society the way the media and the protesters would have had you believe in the months of May and June 2022, now did it? Note: These numbers are based upon data for the population of U.S. States at this link and the status of abortion laws for each state, tracked and updated by this article (last updated by the New York Times on Jan. 8, 2024 at the time of this writing).
No offense to the New York Times, but we like to do our homework here at MMitM. Below we provide a summary of the laws with links to the statutes in each state that The NY Times article (linked above) lists as banned. The laws of those states are summarized (we tried to reflect the language of the laws in each summary) with links to statutes/codes here:
Alabama
Abortion is permitted to preserve the life or health of the pregnant woman
Provisions for when the pregnancy is the result of an act of rape or incest or if the pregnancy is ectopic (when a fertilized egg grows outside the uterus)
Arkansas
Abortion is permitted to preserve the life or health of a pregnant woman
Provisions for pregnancies of minors that are a result of rape or incest contingent on the crime being reported to law enforcement
Idaho
Abortion is permitted in the case of a medical emergency
Provisions for pregnancies of minors and for pregnancies resulting from rape or incest
Indiana
Abortion is permitted in the event of a medical emergency
Provisions for pregnancies resulting from rape or incest
Kentucky
Abortion is permitted to prevent death of a pregnant woman
Louisiana
Abortion is permitted to prevent death or to preserve health
Provisions for minors seeking an abortion and for rape victims
Mississippi
Abortion is permitted to preserve the mother’s life and in the case of rape as long as a formal rape charge has been filed
Missouri
Abortion is defensible if performed or induced because of a medical emergency
Provisions for pregnancies of woman under the age of eighteen years
North Dakota
Abortion is permitted to preserve life or health
Provision for sexual abuse or incest
Oklahoma
The Oklahoma Supreme Court ruled that the state constitution protects the right to abortion to preserve life
South Dakota
Abortion is permitted if necessary to preserve the life of the pregnant female.
Tennessee
Abortion is permitted when the mother’s life or health is in danger
Provision for sexual abuse of a minor
Texas
Abortion is permitted when the mother’s life or health is in danger
Provision for emergency contraception for victims of rape or incest
West Virginia
Abortion is permitted if the embryo or fetus is non viable, the pregnancy is ectopic, or a medical emergency exists
Provisions for pregnancy resulting from sexual assault or incest, provided the assault/incest was reported to law enforcement
Prohibitions do not apply to a minor or an incompetent/incapacitated adult within the first 14 weeks of pregnancy resulting from sexual assault or incest, provided the assault/incest was reported to law enforcement and the victim obtained medical treatment for the assault/incest
Based on this dive into state laws, it is important to note that
100% of American citizens have access to abortion to preserve the life or health of the pregnant woman.
97% of Americans have access to abortion in cases involving rape or incest of minors.
92% of Americans have access to abortion in cases of rape or incest, regardless of the mother’s age.
These details are so often overlooked and should definitely factor into the discussion when the corporate media convicts these states for “banning” abortion.
The Burden of Legislators
Following this dive into the details of the laws of each of these states, one thing stands out: the duties of legislating abortion carry the burden of immersing oneself into the nightmare of rape and incest, giving deep consideration to the tragic reality associated with respectful handling of the remains of aborted fetuses, and diving into every facet of the business and practice of performing abortions. Whether you agree with how these laws are written or implemented, the thought and consideration of these topics demanded of the legislators must have truly been difficult to endure. It certainly is unpleasant to research. While it is easy enough to develop hate in your heart for a lawmaker who strives to advance legislation that is in opposition to your own beliefs or ideals, it is important to remember that they have a really tough and often unpleasant job to do.
Bringing it Home
Meet Me in the Middle prefers the more reasonable perspective that the ruling to overturn Roe restores to the individual states the ability to legislate and govern in a manner more representative of their constituents’ principles and values. This was an enabling move for the states rather than a disabling attack on individuals.
Supreme Court Justice Ruth Bader Ginsburg once wrote that the Roe decision “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.” She went on to note that the Casey decision, “notably retreats from Roe and further excludes from the High Court’s protection women lacking the means or the sophistication to surmount burdensome legislation.” She also expressed optimism that the Casey decision would provide a positive outcome based on the revitalization of the issue among the people and their representatives: “That renewed force, one may hope, will-within a relatively short span-yield an enduring resolution of this vital matter in a way that affirms the dignity and equality of women.”
That resolution did not come in a short time span, but MMitM hopes that we can revive Justice Ginsburg’s hope that lawmakers see the opportunity in the overturning of Roe and seize it. Perhaps our legislators will rise to the challenge and find the courage to implement laws that will settle this issue once and for all. Few issues demand meeting somewhere in the middle more than the issue of abortion. Extreme positions continue to paralyze the legislative process and preclude the resolution for which Justice Ginsburg hoped. Please consider that when evaluating candidates for public office.