Key Takeaways from Roe v. Wade Discussion
Santa Clara law professors unpack the Supreme Court’s draft opinion against reproductive rights
Constitutional Law Expert Professor Brad Joondeph and Reproductive Justice Expert Professor Michelle Oberman led a community-based forum on Wednesday to discuss the recent leaked draft opinion to strike down Roe v. Wade.
In the documents obtained by Politico, Justice Samuel Alito writes that the 1973 Roe v. Wade decision guaranteeing constitutional protections for abortion rights was “egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” he notes in the Opinion of the Court document. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This revelation has created an enormous amount of controversy among government officials and members of the public in the days following the leaked release of the document. If the Roe v. Wade decision is overturned, it would be up to individual states to decide whether or not to ban abortion.
While it remains unclear as to whether or not there have since been changes to the draft, this decision would have significant implications for female reproductive rights within the United States.
To better understand the draft decision, and provide a supportive space for undergraduate students to learn more about this issue, Santa Clara law professors Joondeph and Oberman break down the history of Roe v. Wade and the essential elements of the law. Here are the key takeaways:
Roe v. Wade recognizes a right of “personal autonomy,” Joondeph said. “It set up a since abandoned trimester framework by which no regulation of abortion could occur within the first three months of a pregnancy.”
After three to six months, states could enact “reasonable regulations,” but only targeted at preserving women's health.” After the last trimester, states could go so far as completely banning the abortion procedure.
Under Roe v. Wade, a woman has a fundamental right to terminate a pregnancy to preserve her own health/life throughout the entirety of her pregnancy.
This ruling triggered a substantial pro-life movement in the U.S., leading to presidential politics being transformed and the Republican Party using this stance as a backdrop in national elections to appoint justices to the Supreme Court that would overrule Roe v. Wade.
Following Planned Parenthood v. Casey in 1992, the Supreme Court voted to overrule the Roe v. Wade decision, but was subsequently halted when Justice Kennedy changed his mind.
Although the initiative was ultimately struck down, the Supreme Court justices effectively overruled Roe with the Planned Parenthood v. Casey decision, replacing it with a simpler framework for states. This ruling labeled the demarcation point to be “viability” and prior to viability, “women have a fundamental right to terminate their pregnancy, but states are permitted to regulate abortion up to the point of which it imposes an undue burden,” or substantial obstacle. After viability, states could completely ban the procedure and preserve the life/health exception.
The recently leaked draft opinion claims that “Roe v. Wade was wrongly decided, Planned Parenthood v. Casey was wrongly decided to uphold Roe,” and that there may be no constitutional status to the right to abortion.
In the 230 years of the republic, never before has the court suffered a leak of a full dress opinion. This, according to Joondeph, will have drastic implications for the court long-term.
It’s important to note — this is a first draft opinion from a single judge. There was nothing in the leak to indicate that any other justice joined that language.
One of the most concerning elements about this opinion, putting aside the fundamental right to female autonomy, is what it means for additional fundamental rights we have continued to uphold within the court (same sex marriage, the right to contraception, privacy, etc.)
These decisions will effectively become open to conversation.
The full Roe v. Wade discussion and presentation slides can be found here.