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.