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The Supreme Court of the United States has con­sidered dozens of abortion cases in the last half century, but Amer­icans are still con­fronted with a con­fusing maze of rulings, legal jargon, and an utter failure to settle the matter. It all stems from a single problem: the court’s refusal to define a person as pro­tected by the Con­sti­tution. Yet, the newest abortion case on the court’s docket – Dobbs v. Jackson Women’s Health orga­ni­zation – pro­vides an oppor­tunity for these jus­tices to correct their predecessor’s missteps. 

In 1973, seven judges voted to legalize abortion in the case of Roe v. Wade. Abortion became clas­sified as a form of privacy that the gov­ernment could only limit under certain exceptions.

But on Sept. 1, 2021, the state of Texas enacted a law that restricts abortion after a fetal heartbeat is detected. In order to enforce the law, Texas created a system where cit­izens can sue abortion providers and abettors for up to $10,000 for breaking this law.

Heather Hacker, a founding partner of Hacker Stephens LLP, is rep­re­senting clients in two Supreme Court cases where plain­tiffs are attempting to strike down the Texas Heartbeat Law.

The mere exis­tence of the Texas Heartbeat law, and the backlash against it, proves how much of a tangled web the legal battles over abortion have become.

“In these two cases, the under­lying issue is abortion, but the issues the court is deciding right now are juris­diction,” Heather Hacker explained. “The law involved is a pro­hi­bition on abortion after fetal heartbeat is detected. But the court has not gotten to that question yet: whether such a pro­hi­bition is con­sistent with the Constitution.”

The standard that Roe v. Wade opinions estab­lished was one based on the trimesters of a woman’s preg­nancy; states could only restrict abortion during the third trimester. However, this standard was created with little, if any, Con­sti­tu­tional basis, according to Carrie Sev­erino, pres­ident of the Judicial Crisis Network.

I don’t think anyone even pre­tended the trimester framework could be deduced from the Con­sti­tution itself,” Sev­erino said. “There isn’t some con­sti­tu­tional standard there that Roe was elu­ci­dating because Planned Par­enthood came up with a dif­ferent standard.”

In 1992, Planned Par­enthood of South­eastern Penn­syl­vania v. Casey further changed the precedent of Roe v. Wade. Instead of focusing on the straight­forward trimester standard – however arbi­trary or unsci­en­tific it may be – the court changed the reg­u­la­tions to focus on an “undue burden” that restricting abortion access would create for a woman.

A large problem arose out of the undue burden standard: how does one objec­tively define what an undue burden is? This created a sub­jective rule that courts were forced to interpret, leaving the standard up to judges’ discretion.

“As long as Roe stood, the right to an abortion was absolute,” law student Saswato Ray wrote in Harvard Political Review. “After Casey over­ruled it, the standard’s ambi­guity left courts to engage in fact-intensive line drawing exer­cises from tol­erably to unduly bur­densome, trying to find a metric.”

The lack of con­sti­tu­tion­ality within both the Roe and Casey deci­sions placed judges into a role of inter­pre­tation that they were never sup­posed to assume. Former United States Supreme Court Justice William Rehn­quist addressed this problem in his Webster v. Repro­ductive Health Ser­vices decision. 

The key ele­ments of the Roe framework – trimesters and via­bility – are not found in the text of the Con­sti­tution or in any place else one would expect to find a con­sti­tu­tional prin­ciple,” Rehn­quist wrote. “The result has been a web of legal rules that have become increas­ingly intricate, resem­bling a code of reg­u­la­tions rather than a body of con­sti­tu­tional doctrine.”

“As Justice White has put it,” Rehn­quist con­tinued, “the trimester framework has left this court to serve as the coun­try’s ‘ex officio medical board with powers to approve or dis­ap­prove medical and oper­ative prac­tices and stan­dards throughout the United States.’”

Cur­rently, the Supreme Court has deemed a person as someone viable to exist and breathe on their own. However, that def­i­n­ition is flawed by the basic reality that no child under the age of 5 would be able to survive without the help of others.

Because this def­i­n­ition is so shaky, states have begun to define a person them­selves, which has led to varying opinions. New York allows abortion up until birth, therefore defining a person as a physical being who lives outside a womb.

On the other side of the spectrum, Texas’ law defines a person as someone with a heartbeat.

To end this battle of semantics, shaky con­sti­tu­tional foun­da­tions, and ques­tionable sci­en­tific asser­tions, the Supreme Court must explicitly define who is covered by the rights and pro­tec­tions in the Constitution.

If unable to establish this def­i­n­ition, the court must give this ability back to the states to stop gov­erning from the bench.

Dobbs v. Jackson Women’s Health Orga­ni­zation pro­vides the oppor­tunity for the Supreme Court to give states the power to decide abortion access. Sev­erino explained how this decision would align with the Con­sti­tution better than the current policy.

The Con­sti­tution pro­tects the fun­da­mental rights of its cit­izens – freedom of speech, religion, etc. – to establish those basic freedoms. But every other issue it doesn’t address is sup­posed to be left to the states’ discretion.