• Sarah Garde

Keeping Up with Abortion Legislation

Trigger Warning: The article below makes mention of rape and can be disturbing to some readers.

While the leaked draft majority opinion of the United States Supreme Court in Dobbs v. Jackson Women’s Health has recently dominated the news, abortion has been a hot topic in legislation for many months. Specifically, as the American public awaits the Court’s final decision, several state legislatures have altered their abortion policy.

The current debate regarding the legality of abortion in the US can be traced to three Supreme Court cases. First, in Roe v. Wade (1973), the Court decided that the right to privacy found in the Due Process Clause of the 14th Amendment to the US Constitution allowed for abortion in circumstances where the foetus was not viable outside the womb, typically 24 – 28 weeks post-fertilisation. Simultaneously, the Court’s Doe v. Bolton (1973) decision employed identical justification to overturn a Georgia abortion law perceived as violative of the 14th Amendment’s due process protections. In Planned Parenthood of Southeastern Pa. v. Casey (1992), the Court replaced the Roe viability test with the "undue burden" standard, which prevents states from enacting legislation that is overly restrictive of an individual’s rights. However, the Casey decision also permitted states to more severely restrict abortion access within their borders. In overturning Roe’s viability test (known as the objective trimester framework), the Court established a more fluid, subjective standard. Casey thus permitted states to enact abortion bans earlier than those permitted under Roe.

Following Casey, several states have, in fact, enacted restrictive abortion laws. In May 2021, Texas enacted a law that prohibits abortion after foetal cardiac activity can be detected, typically six weeks into pregnancy. The law, which legalises private lawsuits against those who assist in abortion services, does not rely on state enforcement, allowing it to withstand legal challenges both locally and nationally. The Texas law is not unique; Georgia enacted a similar law in 2019 and Oklahoma has recently done the same. However, the Oklahoma version, while utilising the same enforcement mechanism, bans abortion from the point of fertilisation. Although not as restrictive, lawmakers in Arizona and Florida have also enacted abortion bans which prohibit the procedure after 15 weeks. The Kentucky legislature has also overrode a veto by Governor Beshear to implement a post-15-week abortion ban. The current laws in Texas, Arizona, Florida and Kentucky do not provide exceptions for rape or incest; Oklahoma only does so if those events were previously reported to the police.

Anticipating that the Court may break with Roe, Doe, and Casey, several states have passed "trigger bans". Although the trigger laws vary in their level of restriction and possible penalties, their institution would further restrict (if not completely prevent access to) abortion in Arkansas, Idaho, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah and Wyoming. Although yet to pass, a bill has been introduced into South Carolina legislature that would ban abortion from the point of fertilisation, should Roe and Casey be overturned. In addition, Alabama, Arizona, Michigan and Wisconsin have never removed their pre-Roe bans, ensuring that 22 states would be certain to severely constrain or completely ban access to abortion if given the ability by the Dobbs Court. Moreover, conservative lawmakers in Ohio have started the process of creating a trigger ban and Indiana, Montana and Nebraska are predicted to ban abortion should federal protections disappear. This would criminalise abortion in 26 states.

However, also in response to the leaked draft Dobbs opinion, several states have attempted to ensure the protection of abortion rights, regardless of the Court’s decision. Leading the movement, California has passed a series of bills which would eliminate the out-of-pocket costs for the abortion procedure and provide greater access and support to those in need (or want) of abortion, both for individuals in California and those coming from other states. Following suit, Colorado has recently enacted the Reproductive Health Equity Act, which, by blocking all public entities from denying or restricting access to abortion services, ensures that Coloradoans will have the right to an abortion should they choose to do so. The most extreme protection, however, has been the action taken in Vermont. The state legislature has moved to amend its state Constitution to ensure access to abortion as a constitutional right. Although making a less clear legislative effort, governors from Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington and Wisconsin have also pledged their willingness to protect abortion access in their respective states. Finally, at the federal level, Democrats attempted to pass the Women’s Health Protection Act through the Senate. However, the bill failed to pass and only received 49 votes, instead of the required 51.

While so-called "sanctuary states" have cited previous Supreme Court decisions, socio-economic concerns and fears of abortion deserts, many lawmakers in those states are particularly concerned with the legal precedent a potential Dobbs decision could set. According to Justice Alito’s draft opinion, Roe must be overturned because it unconstitutionally establishes a right not explicitly granted by the US Constitution. While Alito has claimed any Dobbs decision would only affect abortion rights, several lawmakers, including President Joe Biden, and legal commentators fear otherwise. If expanded beyond abortion rights, Alito’s legal logic could call into question the protection of other rights not provided by the Constitution, but otherwise defended by the Court. These rights include access to contraception, freedom of marriage and the ability to refuse medical treatment, among others.

When it comes to abortion, controversy will always be present. Further, while it appears that the Supreme Court may soon announce a decision regarding the procedure, this may not settle the issue. Rather, it may take many months or decades for US law regarding abortion to be defined in legislation, if that is ever to be the case. Moreover, the legal analysis adopted by the Court in Dobbs may have profound effects for years to come, in both abortion and other matters.