Within the next couple of months, the Supreme Court is expected to hand down its decision in Dobbs v. Jackson Women’s Health, which addresses whether a Mississippi law banning almost all abortions after 15 weeks is constitutional. This case takes aim at the two major abortion-rights cases, Roe v. Wade (1973 – lines drawn in trimesters) and Planned Parenthood v. Casey (1992 – line drawn at viability). Under Roe and Casey, the Court has blocked states from banning abortions before 24 weeks of pregnancy. In its briefs, the state of Mississippi attacked both Roe and Casey arguing that the concept that the Constitution provides a right to abortion is not substantial. As discussed below, in recent weeks, states have passed laws that ban abortion completely, or well before the 24-week period.
Newly appointed Justice Ketanji Brown Jackson will not participate in Dobbs v. Jackson, but Justice Stephen Breyer will remain on the Court until this summer. Justice Jackson will begin hearing cases in the new term starting in October 2022.
While people have different views on abortion, this article is intended to provide some basic objective context about how abortion laws work in the United States and what may be changing.
States Pass Abortion Bans in Anticipation that the Court will Overturn Roe
The Supreme Court will likely overturn Roe v. Wade, making the right to abortion a state rather than federal right. Anti-abortion states are catching up, passing laws that would be void under Roe. Last week the Oklahoma legislature passed SB612 which criminalizes abortion of any kind, with the only exception being to save the life of a pregnant woman – conviction for performing or trying to perform an abortion would impose a fine up to $100,000 and imprisonment up to 10 years. The woman seeking the abortion would not be charged. There is no rape or incest exception.
In other states, abortion was outlawed under state law and was only allowed after Roe v. Wade rendered those laws unconstitutional in 1973.
If Roe v. Wade is overturned, laws that remain on the books but are not enforced will come back into force. Those states would have to affirmatively pass laws permitting abortion.
For example, in 1931, the state of Michigan banned abortion except to save the life of a pregnant woman. The statute remains on the books (Penal Code Act 328). Both Planned Parenthood and Governor Gretchen Whitmer have filed suit challenging the 1931 ban, and the governor has said she would use executive authority to ignore the 1931 ban.
In March, Florida banned abortion after 15-weeks (H5), Arizona banned abortion past 15 weeks (SB 1163), and Idaho banned abortion after a fetal heartbeat can be detected (about six weeks) (SB1309). Texas passed an abortion ban up to heartbeat detection (SB8) last year, and challenges to the law have failed.
In Maryland, the legislature is considering HB 626, called “Pregnant Person’s Freedom Act of 2022” This bill caught national attention because it first said that it would not allow an investigation or penalty “for a person…experiencing…perinatal death related to a failure to act.” This was amended to state, “…experiencing…perinatal death related to an act or omission during the pregnancy.” Although the statute did not define the period, “perinatal” could include the time both before and until about 28 days after a live birth when deaths are statistically termed “perinatal mortality.” Some felt the original wording of the statute would permit doctors to terminate the newly born if the attempt to abort failed. In the legal definitions, the site of the termination is critical. It must take place while the fetus is still inside the womb, which is why late-term abortion can be an invasive procedure when it would be easier to terminate once the physical separation has occurred.
Between 1966 and 1973, Abortion Went from Being Illegal in all States to Legal in All States
Some history is in order. According to Planned Parenthood all states had legally banned abortion by 1880 with some exceptions for life and health of the woman. By 1910, abortion was illegal at every stage in every state. It was not until 1955 that Planned Parenthood held a conference on legalizing abortion. In the 1960s, pregnant women who used thalidomide to ease pregnancy symptoms were having babies with severe congenital disabilities. One television host who had used the drug traveled to Sweden to have an abortion.
In 1966, in response to a lawsuit brought by women who had been exposed to rubella, California moved from outlawing abortion to permitting it if hospital committees approved of the procedure. And the movement to reform abortion laws took place in the late 1960s to early 1970s. Between 1966 and 1973, abortion went from being illegal to being legal at some level in all states. In 1976 Congress passed the Hyde Amendment prohibiting the Federal government from paying for abortion procedures.
The Value of Fetal Life in Terms of Personhood and Homicide Laws
Roe v. Wade has two components. First, the U.S. Constitution protects the right to privacy, including deciding to have an abortion. Secondly, a fetus is not “a person” before viability. After viability, states can decide whether there is a compelling state interest in protecting the life of the developing child.
That is why the right to an abortion early in pregnancy has been protected by the Court but late-term abortions can vary by state. There has never been a national right to abortion until birth.
Fetal life is recognized as having significant value under the law. In many states, if a person kills a pregnant woman and the fetus also dies, it is considered a ”double homicide.” In California, Scott Peterson was convicted of killing his wife Laci in her seventh month of pregnancy in 2002 along with his unborn child, Conner. He was convicted of first-degree murder with special circumstances for killing Laci and second-degree murder for killing Conner, and sentenced to death. On appeal, the sentence was changed to life in prison without the possibility of parole for the murder of Laci and a concurrent sentence of 15 years to life for the murder of Conner.
If rolled back, Roe v. Wade would restore the status of the law in 1972 when states decided whether the procedure was permissible within their borders. The next step would be to establish a right of fetal personhood from conception to viability. Personhood is already legally established after viability, but whether abortion is permissible after that stage is a state-level issue under Roe.
While we can address the legal and moral issues, there will be significant practical ramifications that will unfold in the weeks and months following the decision. It will also be a major campaign issue headed into the fall midterms.
Stay tuned for more information when the Court issues its decision in Dobbs.