States’ momentum building to overturn Roe
On May 14, the five conservative justices of the U.S. Supreme Court joined together to overturn a 40-year-old court precedent because they believed it to be “an incorrect resolution of an important constitutional question.”
Though the case had nothing to do with abortion, the ruling resulted in the four liberal justices issuing a warning in their dissent and a media frenzy ensued over the possible willingness of those same five justices to overturn Roe v. Wade, the 46-year-old case legalizing abortion.
Momentum for overturning Roe has been building since the 1973 case legalized abortion and established the trimester framework governing when and why states could regulate it.
In fact, a 1989 U.S. Supreme Court decision saw three justices arguing to abolish part of the Roe trimester framework and a fourth justice arguing to overturn the case altogether. Planned Parenthood v. Casey then came close to overturning Roe in 1992, but instead opted for significantly modifying the trimester framework. The Court declared that “in practice it undervalues the State’s interest in potential life.”
But the Court left intact what it considered the central holding of Roe, that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” It explained that “there is no line other than viability which is more workable.”
The majority in Casey made clear that they were refraining from overturning Roe because of stare decisis, a legal doctrine of abiding by court precedent, but the Court’s May 14 decision suggests that a majority of the current Court is willing to overturn a case they believe decided an important constitutional question incorrectly.
The Court’s Gonzales v. Carhart decision in 2007 upheld the federal ban on partial birth abortion, giving pro-life advocates a major victory and inspiring States to enact a wave of new pro-life laws.
Momentum has continued to build at an increasingly swift pace and appears to becoming to a head.
As National Geographic’s “In The Womb” movie explained in 2007, “using new 3D and even 4D scanning techniques, a window has opened on the womb.” This could have implications for the workability of a line other than viability.
Between 2011-14, the number of abortion clinics decreased in 25 states. Kentucky and five other states are actually down to just one abortion provider.
As of March, over 250 bills restricting abortion have been filed in 41 states during 2019. Nearly half are aimed at banning abortion in some or all circumstances.
Forty-three states prohibit abortions, generally except when necessary to protect the woman’s life or health, after a specified point in pregnancy. Fourteen draw the line at viability, the earliest point allowed; six do so at the earliest ages of viability;and 24 draw the line before viability in a direct challenge to Roe.
On May 15, Alabama’s governor signed a law making performing an abortion at any stage of pregnancy a felony.There are more than twenty court cases in the pipeline that could challenge Roe, if they make it to the U.S. Supreme Court. A Court which now has a conservative majority.
States are beginning to ensure they have a policy in place for if Roe is overturned and authority is returned to the states.Kentucky and eighteen others have laws in place that will place restrictions on abortion if that occurs.
As America anxiously waits for everything to come to ahead, it appears that the hope of pro-life advocates and despair of pro-abortion activists are both warranted.
NATIONAL TRENDS IN STATE LAWS
Pain-Capable Unborn Child Bills – Kentucky and at least 16 other states have enacted legislation prohibiting abortion after the unborn child is 20 weeks old, when science indicates they may feel pain.
Unborn Non-Discrimination Acts – Kentucky again is a leader. 14 states have en-acted laws meant to prohibit abortions sought because of the characteristics of the unborn child. Kentucky and three other states prohibited it based on sex, race, or genetic anomaly.Eight states prohibit based on sex alone. Two states only based on genetic anomaly.
Live Dismemberment Ban – Kentucky and at least 10 other states have enacted laws prohibiting the live dismemberment of an unborn child after a certain age.
Fetal Heartbeat Bills – Kentucky and seven other states have enacted legislation banning abortion after the unborn child’s heartbeat is detectable, which usually occurs at six weeks gestation. Similar legislation has passed one legislative chamber in another state, and has been introduced in at least eight other states this year.