When Roe is Overruled, the Legal Consequences

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We are continuing our review of the presentations given at 2017 Convention in April. You may also find these presentations in our quarterly member publication, MCFL News.

Roe v. Wade was an unprincipled decision that cannot be reconciled with our history, legal traditions, and practices which form the touchstone for determining whether or not an unenumerated liberty interest will be recognized by the Supreme Court under the 14th Amendment,” said Paul Benjamin Linton, author of Abortion Under State Constitutions and Constitutional Law expert, at the MCFL 2017 Annual Convention at Boston College on April 8. Linton explained this as the reasoning for framing the discussion in terms of when Roe is overruled, not if it is overruled.

Where does the Supreme Court currently stand on Roe v. Wade? “Roe was reaffirmed by the 1992 decision in Planned Parenthood v. Casey, but not because it was originally correctly decided,” he said. “Instead, the justices decided to respect precedent and institutional integrity, neither of which now require adherence to Roe v. WadeRoe has not become settled law. People are almost equally divided on both sides of the issue. The persistence of state legislatures in continuing to consider legislation limiting abortion, shows that Roe is not a settled decision.” 

Linton considered the steps necessary to overrule Roe. On the current Supreme Court only Justice Thomas has publicly stated that Roe should be overruled. “Justice Alito would join him, and Justice Gorsuch probably would,” he said. “We would need two more. Chief Justice Roberts might be a sixth vote though I’m doubtful that he would cast a fifth deciding vote. Roberts has an exaggerated respect for precedent. He prefers to nibble away at cases that conflict with earlier decisions instead of a forthright overruling of a bad decision.

“Pro-lifers erroneously think that Roe can’t be overruled without a direct challenge. They think we need to enact something that clearly collides with Roe, such as a complete ban on abortion. That thinking is wrong and dangerous,” he said. “Roe has been reaffirmed in three different cases not on prohibition, but on the regulation of abortion: City of Akron v. Akron Center for Reproductive Rights (1983), Thornburgh v. ACOG (1986), and Planned Parenthood of Southeastern Pennsylvania v. Casey(1992).

“You don’t need a direct conflict with Roe because in any abortion case the threshold issue is what is the standard of review. Is it the Roe standard of strict scrutiny? Is it the Casey standard of undue burden? Or is it the relaxed standard of rational basis? The dangers in a premature challenge to Roe would include the fourth reaffirmation of Roe, reinforcing it as a legitimate precedent.

“However, with a case regarding regulation you don’t have that danger. If you have the votes to overrule, the Court will overrule. If you don’t have the votes to overrule, the Court can say there’s no need to decide if Roe should be overruled because these regulations are Constitutional even under Roe and Casey.

“In Planned Parenthood v. Casey the Supreme Court held that an unborn child was not a constitutional ‘person’ as the term is used in Section 1 of the 14th Amendment. Significantly, this has not been disputed by any of the justices who would have overruled Roe including Chief Justice Rehnquist and Justices Thomas, Alito or Scalia. Casey also held that a pregnant woman has a fundamental right to obtain an abortion. However, the woman’s right is not absolute and must be balanced against countervailing state interests in maternal health and the ‘potential life’ of the unborn child.”

He continued, “Roe’s trimester scheme was an attempt to balance the woman’s right against state interests. The Court held that there could be no state interference in the first trimester. Regulations in the interest of maternal health were allowed after first trimester regulations, and even prohibitions were allowed in the interest of ‘potential life’ of the unborn child after the second trimester when a child is ‘viable,’ except if abortion is necessary to preserve woman’s life or health. 

“In Casey, abortion is no longer referred to as a ‘fundamental right liberty interest under the 14th Amendment,'” Linton said. “A statute is unconstitutional if its purpose or effect is to impose a ‘substantial obstacle’ to women seeking pre-viability abortions. This is a weaker standard than Roe, thus giving States greater authority to regulate abortion, e.g., detailed informed consent, short waiting periods for adults, as well as minors. Casey abandoned the trimester scheme and reaffirmed the viability rule. Regardless of the reason for an abortion, states may not prohibit abortion before viability.”

Linton explored pre-Roe abortion statutes to define the legal implications of a decision overruling Roe. “In thirty states, abortion was legal only to save the life of the mother,” he said. “Thirteen states adopted the ‘Model Penal Code.’ Abortion was legal to preserve the mother’s life, physical or mental health, in cases where pregnancy resulted from act of rape or incest, and where child would likely be born with a grave physical or mental defect. The precise wording of permissible reasons for performing abortions differed from state to state.”

Four states allowed abortion for any reason, at least until late in pregnancy. Two states where abortion was legal for undefined reasons of health or for physical or mental health included Alabama (by statute) and Massachusetts (by court interpretation). Mississippi allowed abortion to save the life of the mother or to end a pregnancy resulting from an act of rape.

Roe v. Wade effectively overturned the abortion laws of all fifty states and made abortion legal for any reason before viability and, arguably, for virtually any reason after viability,” Linton noted. “Because Roe made abortion legal throughout the country, it is natural to believe that a decision overruling Roe would make abortion illegal throughout the country. But, that is not the case. The Supreme Court does not decide what conduct is illegal, only what conduct can be made illegal; what is constitutional or unconstitutional.

“It is not going to the have the dramatic effect the pro-abortion side wants people to think. It is not the second coming of the dark ages with abortion becoming illegal everywhere. Thirty-six states have repealed their pre-Roe statutes, which would not be revived or reinstated by a decision overruling Roe v. Wade. They would have to enact new statutes to ban abortion. 

“Four of those states, however, have enacted post-Roe statutes that would make most abortions illegal upon the overruling of Roe: Louisiana, North Dakota, Rhode Island, and South Dakota.

“Fourteen states have not repealed their pre-Roe statutes and the statutes in seven of these states would not affect the legality of most abortions. In two states, Hawaii and New York, abortion is legal for any reason, at least until late in pregnancy. Abortion is legal for undefined reasons of health or for physical or mental health in Alabama and Massachusetts. Seven states with unrepealed pre-Roe statutes that prohibit all abortions or all abortions except those necessary to save the life of the mother.

“In sum, no more than eleven states would have enforceable laws on the books prohibiting most or all abortions upon the overruling of Roe. Those eleven states account for only 20% of the population of the United States. In the other thirty-nine states, where 80% of the population lives, abortion would be legal for most or all reasons throughout pregnancy. Even in those eleven states, however, there may be some doubt as to whether all those statutes would be enforceable.”

Pro-abortion forces could make state constitutional challenges. “State constitutions may be interpreted in ways that are independent of the federal constitution and provide broader rights,” Linton said. “Nine state supreme courts recognize a state right to abortion that is separate from, and independent of, the federal right to abortion: Alaska, California, Florida, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, and New York. It won’t make any difference if Roe is overruled, these decisions will still stand in the way of enacting or enforcing laws banning abortion. Any abortion prohibition in Massachusetts would require an amendment to the state Constitution.”

States that might consider enacting prohibitions when Roe is overruled include: Idaho, Kansas, Nebraska, Pennsylvania, Utah, Indiana, Kentucky, North Carolina, South Carolina, Wyoming, Iowa, Missouri, Ohio, and Tennessee. 

Linton sees legislative action coming from both sides. Pro-abortion forces would endorse the repeal of prohibitions against abortion while pro-life advocates would favor restrictive statutes. 

“When debating this issue on what happens with Roe we understand that the immediate impact regarding the legality of abortion would be very modest, no more than eleven states, and maybe fewer, will have enforceable laws on the books. NARAL, Planned Parenthood, and the Guttmacher Institute like to say that there are only seven states that protect abortion. They are talking about reproductive privacy laws, such as one in California. This gets it backwards in the law. Conduct is legal, unless it is defined as illegal. You don’t need a law to make abortion legal if it is not already illegal.

“We view a post-Roe environment as a black or white proposition: either banning virtually all abortions in a state, or allowing almost all abortions. If Roe is overruled and you live in a state where Roe is not a state constitutional problem, there are other things you can do. States can enact regulatory measures, e.g., parental consent or notice without a judicial bypass option; spousal consent or notice; more detailed informed consent (or counseling by third party entities not associated with abortion clinic); longer waiting periods; or procedure bans.

“In conclusion, it is hard to say when Roe v. Wade will be overruled, but it easy to say that the overruling of Roe will not have the draconian consequences that advocates of legal abortion claim that it would. Abortion would remain legal throughout most of the country throughout most of pregnancy. Even in states that have prohibitions on the books, such prohibitions would be challenged on the basis that they have been repealed by implication with the enactment of statutes regulating abortion, that their enforcement is precluded on state constitutional grounds and, failing either of those gambits, that they should be expressly repealed.”

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