The End of Roe v. Wade
The End of Roe v. Wade
The issue of abortion is too complex and our country is too large for a one-size-fits-all approach.
Back in May of this year, a draft majority opinion of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization was leaked to Politico. The leaked draft indicated that the Supreme Court was set to overturn Roe v. Wade, a landmark ruling from 1973 that set the precedent on abortion law in the U.S., which prohibited states from banning abortion at least through the first trimester of pregnancy. Abortion has been one of the most hot-button political issues in the nation in the decades since, and the leak caused an uproar on both sides of the debate.
On Friday, June 24, the Supreme Court officially overturned Roe v. Wade (and Planned Parenthood v. Casey, another ruling from 1992 that built upon the precedent of Roe and prohibited states from creating an “undue burden” on women trying to get an abortion before the fetus reached viability or about 24 weeks of pregnancy) but that doesn’t mean that abortion will be illegal nationwide.
Instead, the decision over legalization will be placed in the hands of state legislatures. Personally, I don’t regard this as a bad thing. Politics in this country have become so nationalized in recent years that sometimes it feels like local politics are meaningless, but that isn’t how it should be. In my view, politics should be as local and decentralized as possible, and this is a step in that direction.
I also fall into the pro-life side of the abortion debate, so the idea that states might have the ability to prohibit them if they choose to do so doesn’t really bother me, even with my libertarian views (more on that later). That being said, there are some instances, such as rape, incest, or when the mother’s life is at risk, where the argument in favor of abortion has a much stronger footing.
There are also problems that could arise from states criminalizing abortion, and those problems should certainly be considered. My personal opinion on the morality of abortion does not make me blind to the nuances of this situation.
The Mississippi law at the center of Dobbs v. Jackson banned abortion after 15 weeks, well before the established precedent. It was passed in 2018 but it wasn’t taken up by the Supreme Court until last year, and the level of outrage expressed after the leaked draft opinion seemed to suggest that many people were unaware of this case until recent weeks or at least unaware that this case could potentially overturn Roe and Casey.
I can’t fault anyone for being unable to keep up with every aspect of U.S. politics — as it is quite a circus — but it can be frustrating to see people claim to be passionate about a specific issue when they were seemingly ignorant of it mere months earlier. That being said, people do have a right to their opinions, regardless of when they are formed.
While the fate of Roe v. Wade rested on whether or not the Supreme Court would uphold the Mississippi law, a bill passed in Texas last year received far more attention. That law banned abortion after a fetal heartbeat can be detected which is around six weeks of pregnancy. The bill, S.B. 8, caused quite a bit of controversy by itself, but it’s the enforcement of the law where the real danger lies.
Instead of law enforcement or government officials being in charge of enforcing the Texas law, it’s the average citizen who carries that responsibility. The law incentivizes citizens to bring lawsuits against anyone they suspect of receiving or performing an abortion by offering a reward of at least $10,000 each time a lawsuit is successful in unveiling an illegally performed abortion.
Lawsuits can even be brought against anyone aiding someone in their attempt to get an abortion by assisting them financially or even facilitating travel to a clinic. This unusual type of enforcement was intentionally added to the bill in order to avoid judicial scrutiny, and it succeeded. The Supreme Court denied blocking the law last year specifically because of the unprecedented way that it’s enforced.
This is very dangerous. Regardless of how one feels about abortion, the fact of the matter is that abortion was considered a constitutional right at the time the law was passed. That means that since Texas (and several other states who have since enacted their own copycat laws) can get away with banning abortion in this way, then that opens the door for other states to do the same to other constitutional rights.
The most obvious example would be a state (like say, California?) limiting gun rights by using the same enforcement mechanism, but this tactic could be used by any state to limit any current constitutional right which is a very concerning possibility.
Now that Roe has been overturned, Texas will be able to ban abortions without needing to turn average citizens into bounty hunters, but the precedent from doing so has been set and will almost surely come back to haunt many pro-life conservatives later. This goes to show that supporting legislation just based on its supposed goals can easily have negative effects. To put it simply, the end doesn’t always justify the means.
That logic can easily apply to any proposed legislation, and I apply it to many of the so-called “trigger laws” that are set to pass in 13 states across the country (including Utah, where I live) now that Roe v. Wade is overturned. These laws were unenforceable under the current precedent but will likely go into effect immediately now that the precedent has been changed. Again, I’m on the pro-life side of the argument, so it’s not the idea of banning abortion itself that concerns me. I am, however, concerned about the problems that may arise from the enforcement of these laws.
No matter how well-intentioned, laws always carry with them the potential for abuse. That isn’t to say that no laws should ever be passed, just that we should be cautious of their implications and pay attention to the way that they’re enforced. For example, a woman who goes through a miscarriage in a state with restrictive abortion laws may find herself under investigation if government officials find a reason to believe that her miscarriage was self-induced.
A woman grieving the loss of her unborn baby should not be subjected to even more stress and trauma based on unfounded assumptions.
Criminalizing abortion could also open the door for heightened government surveillance of people’s private lives and medical history. Much like a police officer looking for an excuse to pull someone over, these laws could potentially give the government one more avenue to intrude into our private affairs.
Some states have even considered drastic measures like banning some forms of contraception or even refusing to allow women to go to another state to receive an abortion. This should go without saying, but being forced to receive permission from the government in order to travel would be a gross violation of individual liberty.
To reiterate, again, I am not personally opposed to regulating or even prohibiting abortion, but that doesn’t mean I’m in favor of every tactic the government might use to enforce these laws. As I stated earlier, I’m a libertarian, so naturally, I’m skeptical of the government telling us how to live our lives.
For that reason, many people might assume that libertarians are necessarily pro-choice, but that isn’t the case. This is a wedge issue even among libertarians, with the possibility of good-faith arguments on both sides of the debate.
On one hand, libertarian principles could support a pro-choice stance considering that libertarians believe that the government should have no control over our personal decisions. And based on how poorly prohibition works when it comes to things such as drugs, alcohol, guns, sex work, etc. there’s a valid point to be made that banning abortions won’t make them go away.
Instead of eliminating abortions, prohibiting them will simply push them into the black market where they’re likely to be far more dangerous. To be fair though, this logic could also be applied to violent crimes such as murder. Murder is illegal, but unfortunately, it still takes place. That isn’t a good reason to legalize it, however, and those of us who view abortion as murder see this as an appropriate justification for prohibition.
On the other hand, a cornerstone of libertarianism is something called the nonaggression principle (NAP), which is the belief that one should never initiate force and only engage in violence if it’s in the act of self-defense. From this perspective, abortion can easily be viewed as initiating violence against a helpless victim.
Libertarians also believe in limited government (some of us with more anarchistic tendencies believe there should be no government at all) but in the capacity that government exists, one of its primary functions should be to protect individual rights.
Pro-life libertarians believe that unborn children are living human beings who are entitled to the same right to life as the rest of us, and therefore, the government has an obligation to defend that right. However, I believe that rather than using the power of the government to coerce people, a better approach is to try to educate and persuade people to voluntarily oppose abortion on their own.
Libertarians also believe in the decentralization of power, and this is another reason I support the idea of returning the issue of abortion back to the states. While it is true that this means that many red states could potentially ban abortion altogether, it also means blue states will be free to keep abortions legal. If there’s enough support among the populace, blue states could even use tax dollars to subsidize abortion without forcing conservatives from the next state over to foot the bill.
In contrast to the many trigger laws in place in red states, some blue states such as New York, California, etc. have made attempts to codify the right to an abortion in their own state constitutions.
This latest ruling means that people are free to choose which policies they prefer, and either try to convince their politicians to implement those policies in their own state or move to one that already fits their preferences. That being said, I understand that “just move” is not always an option, especially for people who happen to be in a lower socioeconomic class. This is where the concept of voluntaryism comes into play, where private citizens and businesses can provide assistance to people who fall into that category.
This will also be an interesting experiment in federalism, where a few years down the line we’ll get to see which states’ policies will end up having better results.
One of the concerns of those opposed to this ruling is that the conservative majority in the Supreme Court could use the same arguments it used to overturn Roe to potentially overturn other rulings that pertain to other unenumerated rights that the court has ruled on in the past such as the right to contraception and the right to marriage equality.
This is because all these cases rely on the same interpretation of the Due Process Clause of the 14th Amendment, and Justice Clarence Thomas suggested in a concurring opinion that the Court should reconsider those other rulings.
This is worrisome, and just because I support the decision to overturn Roe that doesn’t mean I support banning contraception or marriage equality. Fortunately, no other conservative justices agreed with Thomas, which means the Court may not be as likely to go after those rights as some people might assume. Still, the possibility that they could go after those rights is a valid concern.
In my opinion, the solution to this is not to pack the Court with more justices as some people have suggested, but instead to pass legislation at both the state and national levels codifying those rights into law. This might be a lengthy process, but it’s still worth an attempt.
The conservative judges currently on the Supreme Court are not the only ones who have taken issue with Roe v. Wade. Many people who support legal abortion have criticized the ruling in the past, including the late liberal icon Ruth Bader Ginsburg.
Instead of ending the debate over abortion, the ruling exacerbated the argument for the last 50 years and deepened the divide between the opposing sides. Overturning it and allowing states the right to address abortion however they choose will hopefully cool this heated debate. This issue is simply too complex and our country is too large for a one-size-fits-all approach
A recent story that illustrates how intense the argument over abortion can get is the attempted assassination of Justice Brett Kavanaugh. Just a couple of weeks ago, a man from California went to Kavanaugh’s private residence allegedly with the intention of murdering him. While in custody, the man told a detective that one of the reasons he was angry was the potential overturning of Roe v. Wade.
This highlights the drastic measures people are willing to take due to the hyperpolarization of our national politics, which is why decentralizing the federal government’s power and attempting to alleviate some of the tension that exists in this country is a necessary step to take.
While I am hopeful that this ruling will bring some semblance of civil discourse back to this discussion, the debate over abortion will most certainly continue for many years to come and personally, I can find fault on both sides of this issue.
As I’ve made clear, I’m morally against abortion and I also consider the tactic of exploiting the (statistically rare) cases of women who are victims of rape or incest in an attempt to garner support for every and all abortions used by many people on the pro-choice side to be repugnant. That’s without even mentioning the racist and eugenicist history of abortion in this country.
However, I also find those who claim to be pro-life but refuse to care about the lives of immigrants and refugees while also failing to condemn war, the death penalty, and police brutality to be incredibly hypocritical. And both sides have unironically used the “my body, my choice” slogan, just to go against it when it no longer serves them.
My hope is that we somehow manage to find an equilibrium as a nation, but forgive me for being skeptical of that actually happening. Those who are pro-choice are likely to rally around this ruling and actively work against it, and it is very possible that many red states will pass harsh and restrictive anti-abortion laws that will undoubtedly expand government power and have unintended consequences.
It is possible for everyone to hold differing opinions and still be civil toward one another, however, and given this massively controversial development, that is something we should all keep in mind.
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