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Roe v. Wade History, Recent Supreme Court Decisions, and “If Overturned” Oregon Specific Scenario.
Last week, it came to the attention of the United States citizens, through a leaked first draft, that the US Supreme Court is intending to overturn the Roe v. Wade case and Planned Parenthood v. Casey. Since the establishment of Roe v. Wade, there have been several adjustments, debates, and controversies surrounding the right to abortion. In this light, the Supreme Court is still unsure as to how the document was leaked, but the document has inflamed persons across the entire country once more. Multiple protests have arisen from this revelation and along with it questions about what the case really is and what’s at stake for women and those who need abortions.
The Politico news source highlighted Justice Samuel Alito for writing and presenting this first opinion draft to fellow supreme court justices. So, if the court is specifically addressing the constitutional right to abortion, what is the Roe v. Wade case?
History of Roe v. Wade
Roe v. Wade started in 1970 and finalized in 1973. The case involved Norma McCovery, who went under the alias “Jane Roe,” and the district attorney of Dallas County, Texas, Henry Wade. Roe went to the supreme court to enforce that abortion was a woman’s right to act on at any time and in any way during the pregnancy.1 Her protest came after she was pregnant with her third child and wanted an abortion. McCovery wanted to challenge the Texas law on abortion because it was only available if a mother’s life was at risk.
At the Supreme Court, after overturning it, Justice Blackmun determined that the Texas law was unconstitutional because it violated the right to privacy per the 14th amendment. However, there were limitations for the point of termination put into place because of that same amendment. The viability of the fetus was called into question.2 Eventually, the result was that abortion was legalized across the entire United States, but rules were put into place for each of the trimesters.
During the first trimester, the woman could decide to terminate until the beginning of the second trimester. In the second term, the state could interfere and enforce the parameters of termination. From the third trimester, “the state could prohibit abortion to protect a fetus that could survive on its own outside the womb unless a woman’s health was in danger.”3
Then, an amendment of Roe v. Wade came in 1992 with Planned Parenthood of Southeastern Pennsylvania v. Casey. In this case, from Oyez, the court “imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an ‘undue burden,’ which is defined as a ‘substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’” 4 In this revision, the court abandoned the three-trimester parameters and instead adopted a new framework based on fetal viability.
Summary and Intentions of the Leaked Draft
The intention of this majority opinion draft is to overrule Roe and Casey. As Alito says in the document, “the authority to regulate abortion must be returned to the people and their elected representatives.” However, if Roe is overturned, each state’s elected officials will have the authority to control abortion rights. In the document, Alito admits that some of the influence comes from the fact that “26 states have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.” Another influence for the writing of this opinion draft originates from Dobbs v. Jackson Women’s Health Organization of Mississippi.
In the Dobbs v. Jackson Women’s Health case, Mississippi is attempting to ban a majority of abortions after 15 weeks.
Alito recognizes ‘In some States, voters may believe that the abortion right should be more even more extensive than the right Casey and Roe recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’[ … ]Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
Alito also states, “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
To Alito, and as stated in the draft, “Together, Roe and Casey represent an error that cannot be allowed to stand.” And to further his opinion draft, Alito writes, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Last, one important reasoning Justice Alito has for pushing forward with this opinion draft is, “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion.”
Ultimately, Alito stresses that Roe and Casey are both unconstitutional and spread division, but in response to this leaked draft, the opinion draft inflamed the public all the same. The overturning of Roe and Casey will cause direct and instantaneous effects, which will also put a significant strain on each state’s elected officials to put in plans for pro-life or pro-choice. The final decision of this majority opinion will be released either in late June or early July. Though this debate and ruling are in process, it is important to SOU students.
Local Protests and Advocacy
Besides other country-wide protests, Cameron Aalto and Alicia Gerrity, students of SOU, hosted the local “March for Choice” protest last Saturday in Ashland. The Siskiyou had a chance to ask them each about why they put the protest together, what it means to them, and the rally’s results.
Cameron said in his reasoning for putting together this march is that “the access to abortions and reproductive healthcare as a whole is vital to safety, well being, and autonomy, and this opinion shows how important it is that we speak up and have our voices heard […] I hope that by us showing up and raising our voices we can come together.” In her interview, Alicia added, “our voices demand to be heard and these rallies need to be turned into change,” as well as “my goal is to create a community where our voice can be amplified, listened to, and respected.”
For Cameron, the march was about ensuring and advocating that “everyone has an inherent right to bodily autonomy.” Cameron also added, “the overturning of Roe v. Wade does not solely impact women. While it is a huge majority, you also have individuals like me who are trans or gender non-conforming, Two-Spirit, or intersex, and a whole variety of gender diverse orientations or sexes that are being directly impacted by this as well.”
Similarly, Alicia commented, “this is important to me because I’ve grown up really ashamed and belittled for being a biracial woman. I’ve finally understood how impactful it is to be heard and speak out on behalf of those who can’t.”
In response to a hypothetical overturned case, Cameron said, “it shows immense disregard for not only the voices of millions being directly impacted by this law, but also the dismissal of our health and safety.” And further exploring the outcomes of an overturned case, Cameron notes, “many states, as we have seen, will most likely choose to make abortion illegal making it so that the availability of medically safe abortive methods are only accessible to those who have the financial means to cross state borders.” Alicia adds, “Oregon is a pretty safe/’blue’ state, [but] an attack on one is an attack on all. This isn’t about people’s reproductive rights as well, it’s an attack on class and deeply rooted in classism.”
In final thoughts about the opinion case, Cameron said, “it is important that we stand and fight in solidarity with those whose rights are being dismissed and overlooked. Abortion is health care —Period.” Alicia backed this sentiment with, “Your voice is power. Stand up for those who can’t use theirs!!”
Last, Cameron reflected that, “The rally went great! So many folks showed up and even some came from off the street to join in! It was really wonderful to see the community come together, and it was especially fun being cheered on by traffic passersby.” And he concluded, “The hope is that there won’t be a need for another rally; that our rights as human beings will be recognized and respected. If not, it gives me hope knowing that our community will come together and fight for our rights of bodily autonomy and all rights that would be impacted by an overturning.”
There is another protest happening tomorrow, March 14th, at 11 am at the Ashland Library, hosted by Planned Parenthood. Learn more at bansoff.org.
What Would Happen in Oregon if the Case is Overturned?
If overturned, Oregon’s elected officials will decide the rules and parameters. And this is what we can expect. Under the Reproductive Health Equity Act (HB 3391), Oregon protects the right and access to abortion. This act even protects and allows immigrants the right to reproductive health services.
And, as quoted from the Oregon Health Authority, “The Reproductive Health Equity Act ensures that people with Oregon private health insurance plans, including employee-sponsored coverage, have access to reproductive health and related preventive services with no cost sharing regardless of what happens with the Affordable Care Act. […] The bill includes prohibition of services on the basis of actual or perceived race, color, national origin, sex, sexual orientation, gender identity, age or disability. This protection may be an immediate benefit for trans and gender-nonconforming individuals.”5 Thus, people with private insurance plans would pay no out-of-pocket costs, and the health officials cannot deny service on the above-listed traits.
From OPB’s interview with Pro-Choice executive director Christel Allen, he says, “We are seen as one of the most pro-choice states in the nation [..] It does not mean that Oregon is a place where everyone is able to access care in their community, quality care, [or] care that’s culturally informed. It does mean that as far as legal protections, we are sitting in a much better position of privilege than so many other states.”6
Educational and Further Readings:
- CrashCourse: Supreme Court of the United States Procedures
- CrashCourse: Structure of the Court System
- Supreme Court Procedures
- The Court and Its Procedures
- Supreme Court of the United States (home page)
- TED Talk: Kathryn Kolbert
- Roe V. Wade (Oyez)
- Table of Supreme Court Decisions Overruled by Subsequent Decisions
- COURT DOCUMENT: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
- Newsy Roe v. Wade Explained
- Khan Academy Roe v. Wade
- NYT: Where Abortion Could Be Banned Without Roe v. Wade
- Searchable Leaked Draft
- Turnaway Study (demographics of abortions 2008-2010)
Women’s Health Resources:
- SOU Student Health and Wellness
- Planned Parenthood Ashland
- La Clinica
- Women’s Health Center of Southern Oregon (Grants Pass)
- Oregon Health Authority: Reproductive Health Education
1Britannica, T. Editors of Encyclopaedia (2022, May 3). Roe v. Wade. Encyclopedia Britannica. https://www.britannica.com/event/Roe-v-Wade
6Ehrlich, A. (2022, May 3). How the fate of Roe v. Wade could impact Oregonians. OPB. Retrieved May 9, 2022, from https://www.opb.org/article/2022/05/02/oregon-roe-v-wade-abortion-access-supreme-court/
3History.com Editors. (2022, May 4). Roe v. Wade. HISTORY. Retrieved May 9, 2022, from https://www.history.com/topics/womens-rights/roe-v-wade
4Planned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Oyez. Retrieved May 9, 2022, from https://www.oyez.org/cases/1991/91-744
5Oregon Health Authority. (n.d.). Oregon Health Authority: Reproductive Health Equity Act: Reproductive and Sexual Health: State of Oregon. Reproductive Health Equity Act: Oregon Health Authority. Retrieved May 9, 2022, from https://www.oregon.gov/oha/PH/HEALTHYPEOPLEFAMILIES/REPRODUCTIVESEXUALHEALTH/Pages/reproductive-health-equity-act.aspx
2Roe v. Wade. (n.d.). Oyez. Retrieved May 9, 2022, from https://www.oyez.org/cases/1971/70-18