Roe v. Wade Hangs in the Balance

On December 1st, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson, a case in which a Mississippi law that bans abortions after 15 weeks is being challenged. Roe v. Wade, the law of the land since 1973, prohibits bans on abortion prior to viability (most experts put this at about the 24-week marker). Thus, the Mississippi law clearly violates the protections set for in Roe v. Wade.

Make no mistake, this law was passed as part of a very intentional effort to get exactly here, before a new conservative SCOTUS who abortion opponents believe may be ready to overturn a 38-year-old case. The potential consequences could not be more dire.

Twelve states have already passed legislation that takes effect immediately if Roe v. Wade is overturned and bans all abortion. Texas’ law, for example, makes performing an abortion a felony, allows the Attorney General to sue the provider for $100,000, and makes no exceptions for rape, incest, or fetal abnormalities.

As a lawyer, I have somewhat mixed feelings about Roe v. Wade. While I wholeheartedly support a woman’s right to choose, I do believe the decision really opened a can of worms in that the Roe court really contorted itself to get to a place where it found a Constitutional right to abortion. In a perfect world, abortion rights would be something that would be protected by the Legislature.

In fact, the Democrat-controlled House of Representatives has sought to do just that by passing the Women’s Health Protection Act, which would legalize pre-viability abortion access and moot many of the state bills discussed above. However, with a split Senate, the bill has little hope of becoming law.

Republicans seem convinced that they can continue their attacks against women’s health rights without facing consequences at the ballot box. I am not so convinced. Recent surveys have shown that almost 60% of Americans believe abortion should be lawful in all or most cases. Even among self-identifying Republicans, 35% believe so. It is possible, I hope that Republicans have overplayed their hand and that overturning Roe v. Wade may be just the spark needed to flip some Republican Senate seats.

It is one more stark reminder of the very real consequences elections have.