By Paul Rozycki
Perhaps nothing illustrates both the legal and personal sides of the abortion issue better than two unrelated recent events. A few weeks ago, we learned that the U.S. Supreme Court is likely to overturn a half century of protection for abortion rights, and, in the same week, we learned that the lack of baby formula is reaching a crisis level.
Based upon a leaked court opinion, (Dobbs v. Jackson Women’s Health Organization, 2022) it appears that the U.S. Supreme Court is on track to overturn the 1973 Roe v. Wade case that provided a constitutional guarantee for a woman’s right to an abortion.
While the Roe v. Wade case was a landmark case, the legal basis for it wasn’t created in 1973. Some of the key principles in the case were laid down years earlier, and have important implications for what might follow an overturn of the Roe case.
Earlier abortion laws and restrictions
Prior to late 19th century abortion was legal in most states, at least until “the quickening”, when the mother could feel the movement of the fetus. There were a few laws on the books, aimed a prohibiting the sale of dangerous abortion drugs, but enforcement was spotty.
By the mid-1800s, the American Medical Association supported limits on abortion mainly to eliminate competition from midwives or other non-medical practitioners, and by the end of the 19th century most states banned abortions. By the early 1970s legal abortion was only available in Washington D.C. and five states, Alaska, California, Washington, Hawaii, and New York.
The right to privacy and the Roe v. Wade case
In the 20th century, a few states went further and banned the sale and use of contraceptives. In 1965 in the case of Griswold v. Connecticut the Supreme Court found Connecticut’s ban on contraceptives unconstitutional, as a violation of the “right to privacy” implied in the 14th Amendment.
The ruling establishing a right to privacy set the stage for the Roe v. Wade case in 1973, which overturned the existing abortion laws in the country. In their ruling, the U.S. Supreme Court divided pregnancy into three trimesters. In the first three months of pregnancy, the decision on having an abortion was totally up to the woman.
In the second trimester, the state could regulate, but could not forbid abortion, and in the third trimester a state could forbid an abortion for a fetus that could survive on its own, except to protect the life of the mother. The 7-2 ruling was written by Justice Harry Blackmun, was based in part on the right to privacy. Blackmun was chosen to write the opinion, in part, because of his legal background working in the medical field.
“This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”
Reaction to Roe
In short order, the pro and con reaction to the Supreme Court’s ruling broke down generally along partisan lines. With some exceptions, Democrats supported the ruling, and, with some exceptions, Republicans opposed it. By the late 1980s those divisions became hardened in both camps, and the abortion issue became a major cultural issue dividing the two parties.
In the decade following the Roe v. Wade case, a number of states attempted to pass laws prohibiting or limiting abortion, and most of those were overturned based on the rulings in the Roe case.
However, two cases in the late 1980s and early 1990s opened the door to more restrictions on abortion. In 1989 in the case of Webster v. Reproductive Health Services, and in 1992 Planned Parenthood v. Casey, the court upheld the Roe decision, but did away with the trimester distinctions, and said restrictions on abortion could be upheld if they did not place an “undue burden” on a woman obtaining an abortion.
While the Roe decision stood, it opened the door to many restrictions from the states. In the years that followed, many states began to require waiting periods, various medical tests, specific requirements for doctors, particular physical requirements for clinics, and other restrictions that made abortions more difficult to obtain. In light of the Casey and Webster opinions, more than a few of those barriers were upheld. Those cases encouraged many states to pass ‘trigger laws’ that would ban abortions, if and when, the Roe case was overturned. Today at least 24 states (including Michigan) have laws that would effectively ban abortions if the court overturns Roe.
The impact in Michigan
In Michigan, overturning the Roe v. Wade case would reinstate a 1931 law that bans abortions in all cases, except to protect the life of the woman. It reads in part,
“Any person who shall willfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.”
Even under that restrictive law one key question remains. What is meant by ‘preserve the life of the woman’? Can an abortion be performed only if the woman is certain to die with a pregnancy? If there is a one in 10 chance of dying? A one in 100 chance? What if a woman needs to end a pregnancy to take chemotherapy? It’s obviously not clear, and few doctors would take the chance of facing criminal charges.
Michigan’s response: A ballot proposal, a lawsuit, and limits on prosecuting
In Michigan there have been several responses to the expected Supreme Court ruling.
There is a ballot proposal supported by the ACLU and Planned Parenthood that would amend the Michigan Constitution to guarantee the reproductive rights in the Roe v. Wade case.
Gov. Whitmer has filed a legal challenge to the Michigan Supreme Court ruling that could overturn the Roe v. Wade decision that protects a woman’s right under the U.S. Constitution. Her lawsuit argues that the right to abortion should be protected by the Michigan state Constitution rather than the U.S. Constitution.
If the suit is successful it would block the 1931 law. Based on a similar Planned Parenthood lawsuit, the Michigan Court of Claims has issued a preliminary injunction that blocks the immediate implementation of the law, but further legal action is likely.
A third response has come from Michigan’s Attorney General Dana Nessel, who has said that she would not prosecute anyone under the 1931 law. At least seven county prosecutors, including Genesee County Prosecutor David Leyton, have also said that they would not prosecute anyone for performing an abortion under the 1931 law. However, there are 83 county prosecutors in the state, and there is no guarantee the others would defer prosecution.
Protests have been held around the nation and in Flint, to support a woman’s right to choose and almost certainly it will be a key issue in the upcoming midterm elections.
The implications beyond abortion
While the issue of abortion and a woman’s right to choose is the essential issue in the Roe v. Wade case, the implications of overturning it go beyond the abortion issue.
The idea that there is a constitutional right to privacy has been the basis for a number of other court rulings that might also be in jeopardy if Roe were overturned. The list is long, but a few of the more significant cases have involved:
- Allowing parents to decide if their children learn a foreign language. (Meyer v. Nebraska, 1923)
- Upholding a parent’s right to send a child to a non-public school. (Pierce v. Society of Sisters, 1925)
- The right to use contraceptives. (Griswold v. Connecticut, 1965)
- The right for individuals to marry someone of another race. (Loving v. Virginia, 1967)
- The right of individuals to make their own decisions about ending life-prolonging medical treatments. (Cruzan v. Missouri Department of Health, 1990)
- Overturning laws that criminalized gay sex. (Lawrence v. Texas, 2003)
- The right for same sex couples to marry. (Obergefell v. Hodges, 2015)
Where do we go from here?
While the release of the draft of the Supreme Court’s opinion has energized and shocked many, it’s not a complete surprise. There were many who thought that Roe v. Wade would be overturned in 1992 with the Casey decision. Only a last minute change by one justice prevented that from happening. The three conservative Supreme Court appointments made during the Trump administration made the reversal much more likely.
It’s also worth noting that the draft opinion is simply that, a draft, and while it’s unlikely to change, it’s possible that the final opinion could be different, when it is released in late June or early July.
Public opinion is clearly on the side of those who support a woman’s right to choose. Most polls show that about two thirds of the American public feel that the Roe v. Wade case should not be overturned, and that abortion should be legal in all or most cases. While 24 states have passed laws to limit abortions, at least 15 have gone in the other direction, and have expanded protection for a woman’s right to choose.
But the energy seen in recent protests shouldn’t be wasted. The protests need to continue, but there should be more than protests. Get registered and turn out to vote. Midterm elections have a lower turnout than the presidential years, and that traditionally favors Republicans. Take the time to sign the petition that would amend Michigan’s Constitution to protect a woman’s right to choose. If it gets on the ballot, it may be the strongest protection for that right. Vote to support it.
And finally, share your story with others. As Jan Worth-Nelson and others have done in the East Village Magazine, let people know that this isn’t about some obscure legal principle for lawyers and judges. It’s not even about Democrats and Republicans. And it’s about a lot more than baby formula. It’s a very human and personal story that can touch all of our lives.
EVM political commentator Paul Rozycki can be reached at email@example.com.