Court appears set to strike Roe vs. Wade

Ken Garten
Legal perspectives
Ken Garten

So once again this term, the Supreme Court is going to address Roe v. Wade in an abortion case out of the progressive, forward-thinking and enlightened state of Mississippi.

Since Roe v. Wade, most of the Supreme Court cases on abortion have been determinations of how far a state legislature may go in imposing rules and requirements on abortion providers that restrict abortion and make difficult, if not impossible, for abortion providers function, without violating the Constitutional rights of those who seek abortions.

This time, though, there may be no prisoners taken between the pro-life and pro-choice powers that be, from reports of the justices’ questioning and probing of the attorneys during the argument of the case this week.

Some speculate from dissecting the exchanges between counsel and the justices that it could be that the Supreme Court will, with a split majority, declare that Roe v. Wade is overruled; there is no longer a Constitutional right to abortion; and states are free to impose whatever abolitions, restrictions, and punishments their legislatures can dream up, subject of course to the prohibition on cruel and unusual punishment secured by the Eighth Amendment to the Constitution. But prison time for participants might fly.

Kinda scary.

Perhaps the best argument for anti-Roe v. Wade opponents is that nowhere does the word “abortion” appear in the Constitution. The right to abortion arose in Roe v. Wade from the concept of a “penumbra” right, a fundamental right that is implicit in the Constitution, but not expressed. Some would refer to this as a legal fiction and ask why was abortion ever and why is it still viewed with the status of an implied fundamental constitutional right?

And why shouldn’t state and local governments have the right to enact whatever public policies that they and their electorates determine. If they don’t want to permit abortion in their state, then enact away?

It does make sense.

And if that’s the way it is after this term of court, I’m wondering how that might look.

Keep in mind that overruling Roe v. Wade would not serve necessarily to outlaw abortion, but would allow states to do so without Constitutional violation.

I suspect that some states would immediately outlaw or severely restrict abortion. I also think some states would dust off and enforce old laws that they have passed outlawing or severely restricting abortion that had previously been struck down as unconstitutional.

Others may not, particularly states that have a strong pro-choice contingent in their state legislatures.

And abortions would likely still be legal some places. But then only those women wanting abortions from states where they are outlawed with the wherewithal to travel to a state where they are available would have access.

And the battles and the picketing between the pro-life and pro-choice forces would likely be played out more in state houses around the country than on the steps of the Supreme Court.

Now that the briefs have been submitted, and the arguments presented, soon enough we will have the latest pronouncement on the Constitutional status of abortion in America.

We shall see.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.