Yesterday, a leaked draft opinion from the Supreme Court appeared poised to overturn the landmark abortion decision Roe v. Wade (1973) and its progeny case, Casey v. Planned Parenthood (1992). For almost 50 years, abortion has been a constitutional right across the United States. In 1992, the Court called on the nation to put the contentious issue to rest, which never happened. After years of fierce campaigning and debate, the Court now appears ready to overturn Roe and return abortion to federal and state legislatures. In Texas, it is likely that abortion will soon be codified as a felony level criminal offense.
The Beginning of Abortion Rights
Before 1973, abortion was illegal in some form in a majority of States. Henry Wade, the Dallas district attorney at the time, prosecuted an abortion case under Texas law, which was appealed to the Supreme Court and resulted in the famous Roe decision. With its opinion, the Court created a new framework of abortion laws centered around fetal viability and struck down all state laws out of conformity with the new scheme. Roe was affirmed, though altered slightly, in the 1992 Casey decision.
The Beginning of the End of Abortion Rights
Recently, Texas passed a civil law upheld by the Court. I suggested that allowing this decision to stand was an obvious portent of a coming decision overturning Roe, or at least walking it back considerably. Sure enough, the Dobbs decision, leaked yesterday, indicates that the Court is poised to overturn Roe and Casey entirely and return the issue to the legislature. The Alito decision argues that Roe was very poorly reasoned, that the right to abortion has no basis in the Constitution or American common law, and that the issue belongs to the people, not the judiciary to decide.
Two Reasons to Overturn Roe
Despite Casey’s call to unify around abortion rights, the issue has remained highly contentious. Indeed, many voters are “single issue” voters, casting ballots for candidates based only on the one issue of abortion. Without Roe, voters could more easily vote for economic and other social policies without feeling obligation to vote for abortion as a single issue. In other words, the fact that abortion remains so contentious may be proof that it does not belong to the judiciary to decide.
Secondly, it is agreed by legal scholars that Roe was poorly reasoned, though its holding is celebrated by advocates of the pro-choice position. It is obvious that the Constitution makes no direct mention of abortion, and the theory of “substantive due process” which supports the Roe decision feels manufactured to provide reasoning for a decision reached by policy choices of judges. That is, the Roe jurists wanted to create a right to abortion, and created a legal theory to support that decision. The American system of separation of powers suggests that this approach is an overstep by the judiciary into the territory of the legislature.
Two Reasons to Keep Roe
Stare decisis is the important consideration of the effect of momentum on the Court’s rulings. If the Court does not allow important decisions to “stand as decided,” then reliance on the Court’s decisions is more difficult to achieve. Stare decisis weighs heavily in favor of keeping Roe, as Casey itself pointed out.
Economic and social considerations suggest that abortion has played a significant role in crime as well. Economists suggest that crime inversely correlates to abortion. Put bluntly, if a mother does not want to carry a fetus to term and give birth, then a child will surely be disadvantaged in life and more likely turn to violent crime in the future. Of course, this argument will not persuade strict moral opponents of abortion.
Abortion Likely Will Become a Felony Crime in Texas
Months ago the Court left the Texas civil abortion law in place, a clear portent of Roe’s looming demise. If the Dobbs leak comes to pass, Texas will likely pass an abortion ban that mirrors Mississippi and two dozen other conservative states, returning the procedure to the Texas Penal Code. How will cases of maternal health, birth defect, rape, or incest be treated? Will travel outside the State to obtain an abortion be regulated? Will the morning after pill be outlawed? At this point, the decision appears up to Texas voters, not the Supreme Court.
Contact Dallas Criminal Lawyer Walker Fults
If you are facing criminal charges in Dallas or North Texas, contact Dallas criminal lawyer Walker Fults right away. Call (214) 838-0557 for a free consultation.
