The month of September has been a wild ride for anti-abortion and pro-abortion activists alike. As Texas Senate Bill 8 went into effect, pro-abortion activists immediately tried to have the courts block the new law. However, due to some crafty writing within the bill, the courts let it go into effect. This law, which makes it illegal to have an abortion after a fetal heartbeat can be detected (about six weeks into pregnancy), was made to not be enforced by the state government but by civil suits made by private citizens. This allows the law to circumvent previous abortion rulings because the state is not the primary mechanism of enforcement. The method of enforcement is not really the focus for anti-abortion activists. For them, it is simply a way to save lives, and for pro-abortion activists, it is a discouraging move that may pave the way for Planned Parenthood v. Casey to be overturned (at least in effect).
Amidst these recent happenings, many in the United States have overlooked the monumental ruling in Mexico that happened soon after the Texas law went into effect. Mexico’s Constitutional Court ruled unanimously to decriminalize abortion within Mexico, where it was previously criminalized in the vast majority of Mexican states.
In most places around the world, abortion is becoming less and less restricted, mostly reflecting the changing attitudes towards it in various countries. But in America, according to the Pew Research Center, public opinion on abortion has stayed relatively stable since 1995. While stability in the polls does not seem like a big win for anti-abortion advocates, it is. The fact that about half the country maintains its opposition to legal abortion in the face of a long-standing Supreme Court decision, makes it much more likely that there will continue to be a push for its ban. This is in stark contrast to the Obergfell v. Hodges case in which the legal definition of marriage was expanded to include same-sex unions. Before that case, states were passing traditional marriage laws and the federal government even passed the Defence of Marriage Act; however, relatively soon after the Supreme Court decision came out, opposition petered out. This is not the case with abortion.
The fact that people maintain their opposition to legal abortion gives me hope that one day in America it will once again be illegal. While it is not realistic to picture that if Planned Parenthood v. Casey were overturned, abortion would be banned in states like Califonia, Republican states would be clamoring to change their laws on abortion as it would score them major points among conservatives. But all this depends on if the Supreme Court decides to overturn the long-standing precedent.
There are some hurdles the Supreme Court would have to overcome in order to strike down their previous decisions. First, they need the votes. It’s safe to assume that all the Democrat-appointed justices will never vote to overturn Roe and Casey. That is expected. So, we are left with six Justices who could vote to overturn. Chief Justice Roberts will almost certainly never vote to overturn precedent, especially when it is going to be unpopular. His general legal philosophy consists of trying to uphold the legitimacy of the court, and seeing as the Supreme Court’s approval ratings declined from 49% in July to 40% after the Texas decision, it is very unlikely that he will decide to overturn. That leaves us with five Justices. One, Clarence Thomas, will most certainly vote to overturn it because of his originalist philosophy, but that still leaves four, mostly unknown, variables. While it is theoretically likely they will vote with Thomas, it is by no means certain.
Here is the positive take: while we cannot be certain that all the Republican-appointed justices will vote to overturn, it is still vastly more likely than if there were a Democrat-appointed majority. Additionally, Roe and Casey are not considered super precedent, meaning they don’t hold as much weight as other entrenched decisions such as Marbury v. Madison because they are not ingrained in our society and are constantly being opposed by large numbers of people. Therefore, the Supreme Court is more likely to overturn them. Finally, and perhaps the best reason to overturn Planned Parenthood v. Casey and Roe v. Wade, is that they are, in my opinion, terrible legal decisions. Not just because they enable the systematic murder of innocents, but because they are legally unsound. As the late Supreme Court Justice Antonin Scalia once pointed out, the court has a duty to rule on the basis of garbage in, garbage out—meaning that bad laws may make unlikable decisions and that even if you don’t like the outcome of a decision, it can still be legally correct. However, this is not the case with Roe and Casey. If you read the Constitution, nowhere in it does it mention anything about abortion, in fact, at the time of its passage, abortion was prohibited by every state.
If you are interested in learning about the history and background of Roe v. Wade, check out this video. If you would like to see the anti-abortion response to the assertion that abortion is a constitutional right, check out this video. And lastly, if you would like to watch an inspirational video about Roe v. Wade and Planned Parenthood v. Casey from famous anti-abortion advocate and physician Mildred F. Jefferson (published by Live Action), click here!