Photograph Source: Elvert Barnes from Baltimore, Maryland, USA – CC BY-SA 2.0
A 2017 U.S. government report, “SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT DECISION,” notes, “while the Supreme Court sometimes expressly overrules a prior decision, in other instances the overruling must be deduced from the principles of related cases.” The report identifies 237 Court decision that have been either overturned or revised.
A handful of key Court cases illustrates how changes legal doctrine signify how the country was “modernized,” became more humane, secular. Among the most notable of these cases are:
+ Dred Scott v. Sandford (1856-1857) — the Court ruled that Americans of African descent, whether free or slave, were not American citizens and could not sue in federal court; in the wake of the Civil War, the Fourteenth Amendment granted citizenship to all people born in the United States, regardless of race.
+ Plessy v. Ferguson (1896) – the Court upheld racial segregation laws, accepting the doctrineof “separate but equal”; a half-century later, in Brown v. Board of Education (1954), ruled the segregation in public education was unconstitutional, effectively negating Plessy.
+ Jacobellis v. Ohio (1964) – the Court has never known how to define pornography in this case Justice Potter Stuart famously declared, “I know it when I see it”; Jacobellis extended Roth v. United States (1957) and informed Miller v. California (1973) in the mainstreaming of what has long been suppressed as pornography.
+ Bowers v. Hardwick (1986) – the Court ruled that a Georgia sodomy law that criminalizing oral and anal sex in private between two consenting adults was a crime; Lawrence v. Texas (2003) overturned that decision, granting privacy rights to consensual adult sexual life, notably among gay men; it set the stage for Obergefell v. Hodges (2015) legalizing gay marriage.
The Trump regime, working closely with local and state antiabortion groups, is moving to reverse one of the most significant, progressive, Court decision, Roe v Wade (1973). Unfortunately, Roe is likely to be either severely revised or overturned given the religious-rights influence on the president and his administration, the Senate and two recent appointments to the Supreme Court.
The fate of Roe v. Wade is worse than you think.
A recently published book by Robin Marty and Jessica Mason Pieklo, The End of Roe v. Wade: Inside the Right’s Plan to Destroy Legal Abortion, warn readers that a woman’s right to the privacy of an abortion are numbered. Most troubling, the authors make clear that while the likely end of Roeis at hand, it involves more than the end of Roe.
Two days after Richard Nixon’s inauguration, on the January 22, 1973, the Supreme Court issued its momentous Roe v. Wade decision legalizing a woman’s right to the privacy of an abortion. Justice Harry Blackmun noted, “… throughout the 19th Century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn ….” The Roe decision forced 46 states to liberalize their abortion laws and remains the defining issue of the culture wars.
The End of Roe v. Wade reveals how the “unborn” is becoming a “person”. The authors weave together two complements dimensions of this process – state efforts driven by well-organized and militant anti-abortion groups and the role of federal court decisions, especially by the Supreme Court, in reframing the meaning of personhood.
Marty and Pieklo show how a number of post-Roe Court decisions played critical roles in undercutting a woman’s right to an abortion. Planned Parenthood v. Casey (1992) is the most important because, while upholding the constitutional right to have an abortion, it introduced the “undue burden” standard permitting states to restrict abortions. Stenberg v. Carhart (2000) furthers the power of a state to restrict abortion so as to protect the rights of the fetus without regard to the health of the mother. However, Whole Woman’s Health v. Hellerstedt (2016) reaffirmed Roe, ruling that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion.
Nevertheless, as the authors argue, these cases are “a visible and blatant signal to antiabortion forces that Roe could be overturned in its entirety by the Court if the right case were brought before it.”
The religious right’s battle to evermore restrict a woman’s right to an abortion and, in time, overturn Roe is being played out on many fronts. Among the antiabortion campaigns detailed in The End of Roe v. Wade are:
+ Prohibit federal funding for abortions (Washington, DC) – since the adoption of the Hatch Act (1976), there have been repeated efforts to prevent federal funds being used to pay for family planning, including restrictions on Title X, the Affordable Care Act (Obamacare) and in the District of Columbia.
+ Fetus pain (Nebraska) – anti-abortionists argued that a fetus could feel pain (e.g., from a needle) at 12 weeks; of 2019, 24 states had passed so-called 20-week fetal pain bans
+ Heartbeat bills (Ohio) – introduced in 2011 to ban abortions after 5th or 6th week of fetal inception; as of 2019, 13 states passed heartbeat bills. The authors note: “With a newly mined conservative majority in the Supreme Court, the right is more convinced than ever that heartbeat bans will be the ultimate weapon to finally overturn Roe v. Wade.”
+ Medication abortion and “telemedicine” abortions (Wisconsin) – prevent use of RU-486 and other drugs that induce an abortion and allow video conferencing between doctor and patient (especially important for rural women); as of 2019, 17 states had laws blocking telemedicine conferencing related to abortion.
+ Mandatory waiting periods (South Dakota) – required follow-up doctor visits ranging from 1-day to 3-days.
+ Mandatory forced ultrasound laws (South Carolina, Oklahoma) – require women seeking an abortion to listen to the fetal heartbeat; in 2019, 12 states require such a test while 11 another merely mandate it.
+ Informed consent requirements (South Dakota) – the doctor or medical professional is required to read to pregnant woman considering an abortion a detailed list of harmful medical consequences (including suicide) that may result due to an abortion.
+ “Anti-coercion” measures – require women seeking an abortion to attend “counseling” sessions with a “crisis pregnancy center” (CPC) representatives, often neither certified therapists nor psychologists but religious spokespersons.
+ Criminalize pregnant women if the fetus dies due still-birth, miscarriage or neonatal deal resulting from a self-induced abortion, attempted suicide, accident or taking of an illegal drug (Idaho, Indiana) – dubbed “feticide” and include Jennie Linn McCormick, Purvi Patel and Bei Bei Shuni, among others.
+ Restrict those who can perform an abortion – a doctor, a medical profession, the patient herself?
+ Restrict where an abortion can take place and with what medical equipment onsite (e.g., ultrasound) to a clinic, a hospital, a woman’s home?
+ Parental consent or notification requirement, and even spousal consent required for abortion – as of 2019, 37 states required parental consent.
+ Expand the notion of “interested parties” involved in a woman’s abortion from the patient and her doctor to a host of other, often anti-abortion doctors and proponents not familiar with the woman.
+ Abstinence until marriage campaigns – promoting no sex outside the marriage bed, opposed to pornography, masturbation, homosexuality.
+ Defund Planned Parenthood (Texas).
+ Adopt “conscious clauses” (Kansas).
+ Adopt fetal “personhood” bills (Mississippi).
+ Promote abstinence-until-marriage campaigns and antiabortion crisis pregnancy centers (CPCs).
+ Expand the notion of “interested parties” to doctors unfamiliar with the woman and antiabortion proponents.
The authors warn that “approximately 400 pieces of individual state based abortion restrictions have which have grown more extreme since the election of President Donald Trump and the seating of two new conservative justices [to the Supreme Court].” They also note that two anti-choice bills have been introduced in the Republican-controlled Senate this year – “Abortion Dismemberment Ban Act of 2019” (S. 1035) and “Pain-Capable Unborn Child Protection Act” (S. 160). More can be expected as 2020 election draws closer.
The end to a woman’s right to the privacy to decide to terminate her unwanted pregnancy seems, sadly, likely to come, especially if Trump is reelected and is able to appoint additional antiabortionists to the Court. The End of Roe v. Wade is an important, essential, study for anyone trying to understand how this historical shift came about. In this way, the authors detail how the “unborn” is becoming a “person,” thus undercutting a core precept of Row.
More worrisome, Marty and Pieklo paint a scary picture of how the well-organized rightwing campaign to end Roe can be a model for campaigns against other rights. What’s next: restrictions on free speech and assembly?