The Supreme Court is taking on a loaded term this year with addressing blockbuster abortion challenges. Two challenges of note include adjudicating the Texas abortion law to assess if it was valid for the state to confer a private form of action (non-governmental) to challenge the practice of abortion after 6 weeks of pregnancy. The second matter will address a Mississippi law that bans abortion after 15 weeks. These are major cases and the most compelling opportunities to significantly address abortion jurisprudence since Planned Parenthood v. Casey and prior to that, the landmark case, Roe v. Wade. 

In this piece, we consider the foundation of abortion jurisprudence and how the controversy it presents today could have been avoided if the Supreme Court had not moved outside its boundaries. This coupled with media sensationalism and dishonest statements from politicians have led to a population misled on this issue.

We begin with the state laws in existence prior to Roe v. Wade. Today, a common argument of abortion rights advocates is centered around “the health of the mother” and “cases of rape” as validating their position. Prior to Roe, much of the states enacted state law provisions that carried such language when addressing the extent of permissive abortion. When Roe v. Wade was decided it invalidated all those state laws. The issue of abortion was traditionally handled by states. In looking at the nation’s heterogeneous culture filled with various beliefs and creeds this was not an unreasonable position. Most importantly, the issue of abortion was not addressed in the Constitution nor did it address the position as to what point life begins.  

When the Supreme Court agreed to hear Roe, it took up a question that was beyond the scope of legitimate U.S. Constitutional parameters. The method to address the issue of abortion at a federal level would have been through the amendment process rather than the “reading in” of seven justices at the Supreme Court of this Constitutional “right”.  In essence, these justices assumed positions outside of their expertise by creating the initial framework, not only formally validating it as a matter of U.S. Constitutional law but then dictating when states can exercise an “interest” at specified stages during the pregnancy to regulate the practice of abortion.

From a structural standpoint, one could legitimately question why the amendment process was not pursued to address the issue of abortion. In basic terms, Article V of the Constitution states the process required which includes several rigorous provisions by design. It requires 2/3 of both Houses of Congress or 2/3 of state legislatures to enact a Convention addressing the potential amendments. After proposal, it would take 3/4 of the states to ratify before it is added to the Constitution. The Constitution is the paramount source of power upon which our government is organized and structured to govern the nation. There was good reason why the framers by design made the Constitution very difficult to amend. When it was to be amended in due course at various moments in our nation’s history, the measure prior to enactment reflected a comfortable majority of state interests in the nation. The abortion “right” as presently interpreted by the Supreme Court does not carry a comfortable majority of states.  An amendment would likely not have passed that would in fact recognize this “right” under the U.S. Constitution in the way the Supreme Court has mandated at present. 

There is meaning in the understanding that recognizing the “right” that was not initially addressed in the Constitution was unable to reach the 2/3 and 3/4 thresholds required of the Article V amendment process. If a “right” of this nature was not to gather this super-majority of support in the nation, it was best left to local and regional democratic processes. 

The Supreme Court may have ascertained that it would be “settling” the issue once and for all, but it has not. The issue remains as divisive as ever, from consuming countless sources of media coverage to being a “litmus test” at Supreme Court confirmation hearings thanks to the sensationalist introduction and disorder brought about by the late Senator Ted Kennedy during the Robert Bork hearings. The hearings since then have placed this issue at the forefront of deliberations. Instead of weighing if someone is qualified to be a jurist on the Supreme Court by weighing their legal philosophy and nuanced understanding of interpreting law at the hearings, the media has recklessly portrayed the hearings in many cases to be an up or down vote on abortion that is funded by many special interest groups promoting expensive ads and often misleading the public. It has become a cultural obsession that did not need to be and it has wasted countless resources and opportunities for civic growth and understanding of what the Constitution means and the role of judges.  

Building off Roe, the last major blockbuster case dealing with the substance of the abortion “right” was Planned Parenthood v. Casey, that dealt with a Pennsylvania law seeking to place restrictions on abortion. Some highlights of the law included informed consent prior to abortion procedure, spousal notice and parental consent.  Spousal notice was invalidated but the other two provisions were upheld. The Supreme Court most significantly also revised the Roe trimester standard that had addressed a state’s level of interest throughout the pregnancy and created the undue burden standard that is the governing law today. The undue burden standard focuses on deeming a state regulation unconstitutional when it places an undue burden on the path of a woman seeking an abortion of a nonviable fetus. It also further elaborated that a law would be invalidated if the state purportedly is furthering the interest of the “potential life” and as a result places a substantial obstacle in the path of a woman’s access to the “fundamental right” to make her own decision. With modern technology advancing, the viability and undue burden framework posed in Casey is the target of the Mississippi and Texas laws. As these cases are decided, we will be providing insight on their outcome and resulting impact on abortion jurisprudence. 

In sum, the Supreme Court cultivated the battlefield for divisive societal division on the issue of abortion when it decided the Roe and Casey cases. A forceful declaration as a matter of U.S. Constitutional law on the “right” and ensuing determinative way to interpret when life begins has consumed our society with unhealthy controversy and discourse. The Supreme Court has an opportunity to correct some of the wrongs of its past with the Texas and Mississippi cases by beginning to rightfully decentralize its authority on this issue and leaving it to state and local communities to provide guidance.