Illustration by Quintana Jones
With the instating of Mississippi’s Gestational Act of 2018, Jackson Women’s Health Organization (the only licensed abortion clinic in the state) filed a federal lawsuit calling into question the constitutionality of Mississippi’s law. Many experts believe that the Supreme Court will rule to overturn Roe v. Wade. If it were overturned, there would be no federal judicial basis for preventing state regulation of abortion. The Court could also rule in line with the Gestational Act of Mississippi that abortions shall not be performed after 15 weeks.
In 1973 the Supreme Court ruled in a majority vote (7 to 2) that restrictive state regulation of abortion within the first trimester is in violation of womens’ constitutional rights to privacy in the 14th Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).
The issue of abortion is far from an easy solve, usually taking “a second or third year law student (graduate school) to fully grasp the legal logistics,” said Jeremy Sarant, a retired lawyer and Con-law coach for Franklin. One of the biggest complicating factors regarding constitutionality is the Originalist school of thought popularized by Justice Scalia, which says that the Constitution should be read as the Founding Fathers intended it. But, at that time in American history, abortion would never have been considered in the writing of the original Constitution because womens’ rights were not mentioned elsewhere whatsoever. Yet, up until the 1800s in colonial America, people commonly and safely had abortions (depending upon which country the colony was claimed for), according to several medical journals of the time and The National Institute of Health’s PubMed.
Anti-abortion proselytizers often claim that Roe v. Wade is “[b]asically a legal fiction. It’s not specifically stated in the Constitution. But the court has found that this that these substantive rights exist. People have these substantive rights,” said Sarant. Substantive rights refer to the “substance of a person” or life, liberty, and happiness. Once the Supreme Court rules on a law, they are required to remain consistent, or otherwise provide explanation for the falter of opinion of the court. One could trace the decisions made now back through hundreds of other cases that relate to the outcome in question.
The ruling in Roe v. Wade was directly informed by the prior ruling, Griswold v. Connecticut (1965), in which a married couple were denied the right to purchase contraceptives by Connecticut law. The Supreme Court found that this was a violation of the Griswolds’ right to privacy under the implied rights of liberty under the 14th, and inferred from the First, Fourth, Fifth and Ninth Amendments. From life, liberty and happiness, liberty is not the phrase many think litigators would choose to fight this battle but “[i]t says no citizens shall be denied life, liberty or property without due process of law, and [the lawyers arguing for abortion rights] don’t want to frame in terms of life, because then you get into this whole question about when life begins,” says Sarant. “Roe v. Wade talked about when a baby is viable, but the court has never decided that this one life begins when you also have the life of the mother.”
After establishing the precedent for the right to privacy, abortion became fully protected under the Consitution with the ruling of Planned Parenthood v. Casey in 1992.
In the Dobbs v. Jackson Women’s Health Organization hearing of December 1, 2021, the Supreme Court circled back to review Roe v. Wade in dealing with the constitutionality of the 2018 Mississippi law that banned abortion after 15 weeks. “[T]he court has three choices,” says Sarant. “They could uphold Roe v. Wade the way it is now. They could say that abortions are still protected, but only until the 15th week, which is what the Mississippi law says specifically, and then after the 15th week, they can be prohibited and then probably some other state would say, ‘Well, we’re gonna make it 10 weeks or five weeks.’ Or they could just overturn Roe v. Wade completely and say, ‘States have the right to make these decisions.’”
Here Sarant highlights a motive behind the second and third possible rulings: if the protection of abortion happened by chipping away with several separate cases, then if the court choses to go with the 15 weeks suggested by Mississippi, then the same is realistic for the demise of abortion rights.
Kathyrn Kolbert, a leader of the Planned Parenthood v. Casey prosecution litigation team, spoke on the TED stage regarding “The end of Roe v. Wade– and what comes next,” saying that it may be very likely, due to the political makeup of the Supreme Court, that the ruling will be overturned.
Hannah Jones, a back office clinic assistant for Planned Parenthood Columbia Willamette, writes that there has been a recent outpour of support in the face of these changes. “The line between stability and poverty in this country is thin and an unplanned pregnancy is more than enough to send someone or a whole family into severe poverty,” they say. Currently located at the Bend clinic, and having previously worked in Northeast Portland and Beaverton, Jones writes that “[i]n Bend we already see people from Idaho and other states and I believe that is the case in Portland as well. If states continue to restrict access I foresee an increased pressure to take on more patients and increased waiting times.”
The restrictions from state to state would vary in the case that it becomes a state sanctioned issue. Many states enact laws that create “an impossibly small window of time in early pregnancy, or a heartbeat bill which can mean no termination after a heartbeat is present (approximately 5.5-6 weeks) and a patient had to listen to the heart beat before they make their decision. The laws are sure to be drastically different in each state.”
There are currently 12 states, including Oregon, that have legislation protecting abortion rights, and an estimated 21 ready to severely limit access which would affect a total of around 100 million Americans, according to NPR.
In her talk, the Planned Parenthood v. Casey prosecutor Kolbert also delves into who will be most deeply affected by these restrictive laws. “BIPOC women are dying at three times the rates of maternal mortality,” a situation she said will only worsen without access to free safe abortions. A proposed solution is an online pharmaceutical abortion pill that could remain unregulated, but many low income Americans and populations in rural areas without access to internet may not be able to rely on this method. The current unit price for one pill is $300, before delivery fees.
With a ruling expected summer of this year, Americans in both the pro-choice and pro-life camps eagerly await the announcement, but one thing is certain. Regardless of the outcome, this issue isn’t going away anytime soon. Pro-life activists have continued this fight for 30 years since Roe v. Wade and so have their counterparts.
“[I]t’s really important that anyone who is interested in volunteering to support reproductive rights should look into the endless number of amazing organizations that are joining the fight,” says Jones. She described organizations such as The Brigid Alliance that are committed to providing free transportation to and from abortion clinics. “Planned Parenthood is also often taking volunteers and has college ambassador programs as well as a teen youth counsel.”
