A layperson’s guide to the Supreme Court hearings on abortion

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Dr. Kathryn Rombs during a talk about motherhood. Photo by Mary Kate Leonard

Since the beginning of September when the Texas Heartbeat Act took effect, abortion has been a prominent point of discussion and debate across the country. 

In addition to being the object of heated moral controversy, abortion has been the subjet of complex legislation in the U.S. The ease with which misinformation spreads on social media makes it even more difficult to make sense of what is happening in the Supreme Court right now. Below is a basic outline of what a college student ought to know about this vital human rights battle.

What is the history of abortion cases in the Supreme Court?

Before 1973, abortion’s legality was decided by the states. Most states heavily restricted or illegalized abortion. This changed with Roe v. Wade when Norma McCorvey challenged the Texas law outlawing all abortions unless the health of the mother was at risk. 

On Jan. 22, 1973 the court ruled the state law unconstitutional, saying that the right to abortion fell under women’s privacy rights. The justices found the right to privacy in the Ninth Amendment and due process clause of the 14th Amendment.

Roe v. Wade established a framework for state abortion restrictions based on trimester. In the first two trimesters, abortions are legal, but in the third trimester, states can regulate abortion as they wish, but are required to allow it in the case of danger to a woman’s health. 

On the same day that Roe v. Wade was decided, the court also decided Doe v. Bolton. The ruling stated that if it was necessary to protect her health, a woman may obtain an abortion even after viability, when the unborn child could survive outside the womb. Health was defined with “all factors — physical, emotional, psychological, familial, and the woman’s age.” The exception thus allows abortion in all three trimesters.

Roe v. Wade and Doe v. Bolton overturned the majority of abortion restrictions that were currently in place in the states. Since these Supreme Court decisions, National Right to Life News reports over 62 million abortions in the U.S., based on data compiled from the Guttmacher Institute.

What happened on Nov. 1?

The Supreme Court heard two challenges to S.B. 8, also known as the Texas Heartbeact Act. This bill prohibits all abortions after six weeks, when fetal cardiac activity can be detected. Texas is not the first state to pass a Heartbeat Bill. But it differs from the other bills because it designates abortion as a civil offense, which allows citizens to sue anyone involved in the procurement of an abortion. 

The law took effect on Sept. 1. Now the court is reviewing whether Texas can prohibit abortion with civil actions and whether courts can enjoin laws which concern civil actions. If the court determines the law constitutional, it will be sent back to lower courts for further proceedings. Several justices, including Brett Kavanaugh and Amy Coney Barrett, appear skeptical of the law’s ability to stand. 

What is happening on Dec. 1?

The court is hearing Dobbs v. Jackson Women’s Health Organization, a case challenging whether prohibitions on abortion prior to viability are constitutional. In 2018, Mississippi enacted the “Gestational Age Act,” which prohibited all abortions after the fifteenth week of pregnancy, with exceptions for medical emergencies and fetal abnormalities. 

After the law’s enaction, it was invalidated because Roe v. Wade prohibits abortion restrictions before viability. Dobbs v. Jackson is directly confronting Roe v. Wade. If the law is upheld, even in parts, states would have the opportunity to restrict abortion prior to viability for the first time since 1973.

The heart of the matter in all these court cases is whether abortion legislation can be delegated back to the state level. This would leave it up to the states to protect or illegalize abortion. 

Why should you care?

Regardless of your stance on abortion, the Supreme Court’s decision on S.B. 8 is important to watch. If S.B. 8 is deemed constitutional, it provides states with a tool to nullify other rights enumerated in the Constitution. Those rights “could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights, if this position is accepted here,” said Justice Kavanaugh.

Your rights are being determined in the Supreme Court right now. That’s worth paying attention to. But the most important right being discussed is the right to life.

Amidst all the legal technicalities and complexities, it’s easy to lose sight of what abortion truly is: the killing of a defenseless human baby. 

We currently live in a country in which it is legal to dismember babies who feel pain. But little by little, states are moving closer to illegalizing the atrocity which should be America’s deepest shame. 

After nearly 50 years of legalized murder, it can be difficult to be optimistic. I don’t know if Roe will ever be overturned. I don’t know if America  will ever exist without abortion. But as I write this, an infant is being killed. The least I can do is to educate myself on her rights in question.

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