Good Riddance to Roe v Wade!

by Isaac Kight

The recent leak of what has been confirmed to be an accurate draft of a coming Supreme Court ruling is unprecedented. It is an attack on the very institution of the Court, as these rulings are intended to be released to the public all at once after the justices have properly deliberated and edited a draft prepared to the liking of all of the justices in the majority. The riots and political efforts to intimidate the justices into changing their decision is not only an attack upon the Supreme Court today but also upon our Constitutional system of government as a whole. Thankfully, these efforts are likely to fail.

Legal Impact

The court heard arguments earlier this year about a law hailing from Mississippi that would prohibit abortion procedures in that state after the 15th week of pregnancy except in cases of medical emergency or fetal abnormality. A doctor performing such a procedure after the 15th week without a proper excuse, will face only the loss of their medical license. Individuals falsely accusing a doctor under the law are subject to a $500 fine, to prevent frivolous allegations. It is essentially a first trimester ban (even if it spills into the second trimester). Of 42 European countries, 39 have more restrictive abortion laws than the Mississippi law even though few Americans claim that Europe is a place with weaker protections for women’s rights.

There are six justices who have found in favor of the Mississippi law, including Chief Justice John Roberts. There are five justices, however, who seek to use this case to overturn the precedents set in the 1973 Roe v Wade and the 1992 Planned Parenthood v Casey decisions. The names on the list are not all that surprising: Clarence Thomas, Samuel Alito, Neil Gorsuch, Bret Kavanaugh, and Amy Coney Barrett. Retiring Justice Stephen Breyer and justices Sonia Sotomayor and Elena Kagan dissent from the decision, being against both the overturning of the prior precedents and against the Mississippi law. It is a curiosity that three of the justices in the majority opinion were nominated by Donald Trump with the other two hailing from the Bushes. Several presidents have ultimately fulfilled their campaign promises to nominate justices who would overturn the Roe precedent.

When the decision (court’s opinion as to law) is formally released, the lower courts will have to allow the enactment of laws like the Mississippi law and those less restrictive than that law. More restrictive laws are likely to continue to face barriers in federal courts until the Supreme Court takes another case on the subject and offers further detail. For that reason, it is unlikely that states that have passed “heartbeat bans” will be able to implement their laws. A heartbeat ban prohibits the procedure when a heartbeat is detectable, at about the 6th week of pregnancy. These laws only prohibit doctors from performing the procedure, none of these laws hold penalties for a woman seeking or undergoing such a procedure.

In most European countries the abortion procedure is prohibited after the first trimester. These prohibitions generally vary in range from the 12th week of pregnancy to the 14th. The United Kingdom has relatively lax regulations allowing the procedure up to the 24th week of pregnancy. In Europe, the procedure is always performed at hospital. There is often a process a patient undergoes before the procedure which starts with some form of exam by a doctor to confirm that the woman is healthy enough to undergo it. This process ensures there is informed consent, that the patient understands the medical procedure and its possible health consequences. In the United States, the procedure is conducted in clinics by doctors of questionable qualification and in many states no exam is necessary to determine the health of the woman prior to the procedure. In California, the procedure does not even have to be performed by a doctor.

Political Impact

Since the news of the SCOTUS ruling was prematurely released, it has seen protests and riots on the part of pro-choice groups. In Los Angeles, police cars were vandalized (destroyed) and several officers injured. The Supreme Court building in Washington DC has had to be secured behind a security barrier. Democrats in Congress have been calling for the impeachment of justices and doing what they can to apply pressure to convince them to change their votes. The separation of powers in our constitutional system means it is not for Congress to assault the court this way. At several press conferences, the White House has both refused to condemn the leak (along with the entire Democrat Party) and refused to condemn the doxing of and threats against Supreme Court justices. Indeed, rioters have now appeared outside the homes of Supreme Court Justices.

Going into the Midterm Elections this November, Democrats are hoping this issue can galvanize their base and reduce the expected electoral damage. Polls suggest a red tsunami is coming. Many establishment Republicans are likewise nervous about how the issue will impact the coming elections. All for naught apparently, as a CNN poll released on May 6th shows a huge increase in Republican voter enthusiasm after the SCOTUS leak. Republicans were already on track to win a landslide in the House and probably also the Senate, despite fewer contested elections. With this news, the likelihood of a red tsunami has drastically increased.

The generic candidate poll is often used to test congressional races nationally. Likely voters are asked for which party they intend to vote rather than for specific candidates. Prior to the SCOTUS leak, the GOP held a 1% lead over the Democrats (a substantial lead given that the Democrats usually have the advantage) 45%-44%. Since the leak, the margin among likely voters widened to 7% with the GOP gaining substantially 49%-42%. It seems this leak has galvanized the vote and very much in the Republican Party’s favor. It is noteworthy that these are CNN numbers, which is not a rightwing polling agency.

Polls have already shown that a majority of Americans support the heartbeat ban, while larger majorities support some restriction of abortion early in pregnancy. About 8 out of 10 oppose late term abortion. Nevertheless, polls over the past several years have shown that the majority also want the procedure to remain legal for at least some significant period of a pregnancy. If the Democrats continue to run on the abortion issue it will prove a sure failure for them. In fact, younger voters are more likely to support the heartbeat ban than older voters. Indicating that the tired trope that younger people are more radically left than older is something of a fiction.

Social Impact

It has not escaped notice in recent years that the number of abortion procedures being performed has drastically decreased. Clinics have been going out of business across the country for want of business. Millennials have chosen to be less promiscuous than earlier generations and Gen Z is even less so. Younger people are having less sex, naturally leading to fewer abortions. Contraception has also improved in recent years, with the morning after pill and Plan B joining a number of contraceptive options available to women.

Texas has recently passed laws restricting abortion procedures. The result has been a decrease in the number of procedures in Texas. The number of procedures has also increased in New Mexico, Oklahoma, and Louisiana where fewer restrictions exist. It follows that some Texans are crossing state lines to have the procedure. Still, the total number of procedures is slightly lower than in years prior to Texas implementing its law. It is safe to say, that the restriction of abortion procedures will lead to fewer still, even as younger generations have less demand for the procedure. Nevertheless, California, Illinois, and New York will continue to be extremely permissive when it comes to abortion procedures. Anyone who truly wants the procedure will be able to access it somewhere in the US. There are nonprofits that offer free transportation for those who cannot afford to travel for the procedure.

Good Riddance to Roe v Wade

The Roe decision was bad law. In it, the Supreme Court forced the states to allow medical procedures that many wished to prohibit. In the name of protecting access to this procedure, the SCOTUS severely limited the power of the states to regulate healthcare and medical safety within their jurisdictions. The court imposed upon the country the most extreme policy on the subject very much against the will of the voters. The court also imposed some of the most permissive abortion practices in the world. Trends are now headed in a very different direction and most voters want the procedure to be restricted.

Those on the left are always saying America should be more like Europe. In this area I wholeheartedly agree: while the procedure should remain legal and unrestricted for the first trimester, it should be prohibited thereafter. The procedure should be conducted in a hospital or at least by a doctor with admit privileges to a hospital. Women also have the right to informed consent and to a safe medical procedure. This is the European model and it is one that would meet with the support of vast majorities of voters in most states.

In the future, states will set what limits they wish to set and these will vary. It will no longer be the court’s place to dictate policy to the states against their will.

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