Egregiously Wrong

By FOCUS, a Leonine Business

On May 3, POLITICO leaked an official draft opinion by U.S. Supreme Court Justice Samuel Alito overruling the landmark 1973 Roe v. Wade decision that established a constitutional right to abortion in the United States. The opinion was written for Dobbs v. Jackson Women’s Health Organization and reports that five conservative justices, including all three former President Donald Trump’s appointees, voted to overturn both Roe and the 1992 decision Planned Parenthood v. Casey. Justice Alito argues it was “egregiously wrong” from the start in making this a constitutional issue and that the legality of abortion should be determined by federal and state legislators. The big question of what happens if Roe falls is already hastily playing out in state legislatures.

Dobbs is a case out of Mississippi that explicitly asks the court to overrule Roe and uphold the state law that bans nearly all abortions after 15 weeks of pregnancy. The Roe decision established “fetal viability,” the point at which a fetus can survive outside of the womb, at around 24 weeks and delegitimized state laws that barred abortions before that time. Arizona and Florida both enacted 15 week abortion bans in the past two months, neither of which provide exceptions for rape or incest, that will take effect in late June and July 1 respectively. Louisiana and Nebraska also have 15 week abortion bans, signed in 2018 and 2020.

In Texas, a law has been in effect since September that bans abortions in the state after only six weeks of pregnancy. Furthermore, the law encourages private citizens to sue anyone suspected of helping a person receive an abortion for a reward of $10,000. “Texas-style” abortion bans have cropped up in 11 other states. Most recently, Oklahoma SB 1503, the Oklahoma Heartbeat Act, was signed by Republican Gov. Kevin Stitt on May 3 banning abortions in the state after six weeks. Governor Stit even took to Twitter boasting the signing of the bill and claiming he “wants to make Oklahoma the most pro-life state in the country.” A additional bill passed in Oklahoma this year will make it a felony to perform an abortion, with an exception only for the life of the mother, as of this summer.

Overall, half of states are expected to ban abortion outright or limit it severely without the protections of Roe. Alabama, Louisiana, Tennessee and West Virginia have constitutional amendments to prohibit any protection for abortion rights and 18 other states have anti-abortion laws enacted. The Guttmacher Institute reports that so far this year 86 abortion bans have been introduced across 31 states.

Thirteen states have trigger laws, which are abortion bans passed since Roe that are designed to take effect immediately and without much legislative effort if Roe is overturned. The states with trigger laws are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. An exception to the ban exists in all 13 states if the life or health of the woman is in danger, but not for pregnancies that are the result of rape or incest.

Unconstitutional post-Roe restrictions are currently blocked by courts in Idaho, Kentucky and Montana, but could be brought back into effect with a court order in Roe’s absence. These near-total bans seek to prohibit abortion under all circumstances.

The justices may change their decision before the final opinion expected by June, but it is highly unlikely, and state legislators are clearly taking matters into their own hands.