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With the publication of the decision in Dobbs v. Jackson Women’s Health Organizationpoliticians and pundits publicized a parade of horrible – from criminalization of contraceptives to cancellation of Brown v. Board of Education. In reality, the post-Roe world will look a lot like the Roe world to most citizens.
Although this is a momentous decision, it is important to note what it does and does not do.
The decision itself was already widely known. It hasn’t changed drastically since a previous draft leaked. The Conservative majority stood firm saying that Roe v. Wade had been misjudged: “The Constitution does not prohibit the citizens of every state from regulating or prohibiting abortion. Roe and Casey arrogated that authority to themselves. We now reverse those decisions and return that authority to the people and his elect”.
The Chief Justice was alone
In the end, Chief Justice John Roberts cut a somewhat lonely figure in the court mix on the issue. His competition did not seriously challenge the majority view that Roe was not based on good law. However, he allegedly refrained from quashing the decision altogether. It is the ultimate call of a progressive detached from the underlying constitutional interpretation.
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The court now has a solid majority of justices who are driven more by what they see as “first principles” than pragmatic concerns. From a court that has long used nuanced (and maddeningly vague) opinions to avoid major shifts in constitutional doctrine, we now have clarity on this issue. It will be up to the citizens of each state to decide.
The court anticipated the response to the opinion of those who “stir up an unfounded fear that our decision jeopardizes…other rights”. The opinion does not expressly discuss contraception, same-sex marriage or other rights.
This claim has always been absurd but has become a topic of discussion on the left. After the draft notice was leaked, the New York Times opinion writers warned that some states would likely ban interracial marriage if Roe v. Wade was quashed: “Imagine if each state was free to choose whether or not to allow blacks and whites to marry. Some states would allow such marriages; others probably wouldn’t.
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It takes a lot of imagination because it’s completely absurd, even if it must come as a surprise to Justice Clarence Thomasgiven her interracial marriage, or to Judge Amy Coney Barrett, given hers interracial family.
Nevertheless, politicians lined up to lead the parade predicting horrific consequences. house tenant Nancy Pelosi warned that “along with Roe and their attempt to destroy him, radical Republicans continue their crusade to criminalize health care freedom”.
Yet the fact is that this ruling is narrowly crafted to determine whether there is a constitutional right to abortion and would not infringe upon those other rights. thomas alone raised the issue of reconsideration of cases that protect same-sex marriage, interracial marriage and contraceptive rights. A majority of justices noted that “abortion is fundamentally different, as Roe and Casey recognized, because it destroys what these decisions call ‘fetal life’ and what the law before us describes as a ‘human being’. to be born “”.
The court considered that “it is time to respect the Constitution and to return the question of abortion to the elected representatives of the people”. Of course, a lot has changed since 1973 when Roe was returned. At that time, most states Restricted legal abortions.
Majority of Americans Support Legal Abortions
Now crushing it majority of Americans supported Roe v. Wade and 16 states have guaranteed abortion, including states like California, Illinois, and New York that have a large percentage of the population. States like Colorado protect a woman’s right to make this decision without limitation as to the stage of pregnancy.
In addition, abortions can be performed at home, not in a clinic, with the use of the morning after pill. It would be difficult for states to prevent access to these pills even if they were inclined to do so, especially if such access is supported by the federal government.
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Yet 26 states have asked the court to overrule Roe and his successor, Casey. With Dobbs, we will now have a new political debate on access and possible limitations on abortion. Most citizens are in the middle of this debate.
While a strong majority supports Roe v. Wade, they also support limitations on abortion. Polls also show that 65% of Americans would make most abortions illegal in the second trimester, and 80% would make most abortions illegal in the third trimester. (The United States is one of only 12 of the 198 countries in the world that allow abortions for any reason after 20 weeks.)
President Joe Biden responded to the advisory by calling, again, for congressional federalization of the Roe Standard. Even if the votes could be found to pass such a law, it is not clear that it would be upheld by a court which has now referred this matter to the states.
One thing Biden said was clearly true. Abortion will now be “on the ballot.” The judges were indeed motivated by the need for the public to make these decisions and wrote that “Roe abruptly ended this political process.”
The issue will loom large in the upcoming elections, now that states will decide their own laws, ranging from prohibitions to restrictions to absolute guarantees. And the outcome will depend on the votes of millions of citizens rather than nine judges.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
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This article originally appeared on USA TODAY: Overturning Roe – Supreme Court Abortion Decision a Victory for America
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