Last week, the Supreme Court blocked a Louisiana abortion law that mimicked a Texas law forcing abortion providers to uphold "admitting privileges," which allows providers to go to hospitals and perform the procedure there (a move that is more burdensome than is helpful). This was subsequently struck down in Whole Woman's Health v. Hellerstedt. Since this decision, I think we all need to ask ourselves: Why do states continue to manufacture laws that are blatantly unconstitutional when it comes to abortion?
Let’s look at the recent track record. Iowa, Ohio and Mississippi have all passed laws that make abortion illegal if a fetal heartbeat is detected (which can occur as early as six weeks). South Dakota, North Dakota, Kentucky, Louisiana and Mississippi are predicted to completely ban abortion in the absence of Roe should it eventually be overturned in a majority conservative Supreme Court. However, with Roe v. Wade reinforced by cases such as Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt, precedent has made it virtually impossible for all of these policies to ever be upheld.
The crux of this issue lies in the fact that though landmark cases — such as Griswold v. Connecticut, Roe v. Wade and Planned Parenthood v. Casey — have set clear precedent that protects women's right to privacy and their right to receive abortions, Supreme Court justices are finding ways to interpret these laws as constitutional despite the precedent of these cases. In the case June Medical Services, LLC v. Gee, Justice Brett Kavanaugh wrote his dissent not in opposition to the precedent set by Whole Woman's Health v. Hellerstedt, but instead argues that though the law is identical to Texas’ abortion law, it does not put undue burden onto women. In Gonzales v. Carhart, the partial birth abortion ban was upheld, as the court argued that the law only banned one type of abortion method, and therefore does not inflict an undue burden onto women seeking abortions due to the variety of options still available to them. This method of abortion is, however, one of the only types of abortion women can safely receive in their second trimester, a time frame that is before the point of viability and should not be regulated as heavily.
This brings us to a second issue. Has the court gone too far in specifying the way in which abortion law can be interpreted? The loopholes that the courts present in justifying cases that seem to be contrary to protecting women's reproductive rights coexist with policy that explicitly prohibits it. Perhaps the intent of the states that continue to produce laws that are clearly unconstitutional is to force the court to become judicially active instead of continuing to produce rulings that are consistent with precedent but have an opposing de facto impact to the intent of previous rulings. With the new Supreme Court lineup, the chance that this bench breaks precedent on a matter that has gone relatively back and forth for over 45 years is probable. While Chief Justice John Roberts voted down the Louisiana law with the liberal wing, the court’s opinion will be revisited to administer a final ruling; his vote is not permanent. The intent of preceding rulings are lost in the technicalities of these cases themselves. As time goes on, the court must render a final decision to abortion that is not ridden with a whole list of regulations that states try to find a way around.
This process of slowly breaking down a precedent until an essentially new one is created has been seen before, specifically with the NAACP test cases that eventually led to the ruling of Brown v. Board of Education. The case with abortion however may be a little more complex. Since the existence of the rights of a fetus change as the pregnancy approaches the point of viability, there is clearly more debate to be held on who is afforded which rights. We still have a long way to go before the court can render a decision in finality.
I’m honestly a little scared. To know the fate of my reproductive rights lies in such variability and uncertainty is no easy responsibility. While states should not impose such arbitrary laws that essentially take away a woman’s right to her own body, I am hoping that these cases will one day render a ruling that will uniformly protect the rights of women. Considering that according to an anti-abortion website over 2 million college-aged students get pregnant every year, this issue may matter more to your community than you think it does. Abortion for college students can be the difference between getting a degree and dropping out for both men and women.
I am grateful that women on the Supreme Court such as Justice Ruth Bader Ginsburg are actively involved in this decision. However, I know that the politics surrounding this issue has historically been dictated by men. And while they heavily influence this issue, I fear that the importance of the rights of women may not be understood fully by them. Perhaps more men are involved in this decision than women are. Despite this uncertainty, as a woman, I am encouraged by the words of abolitionist Sarah Grimke: “I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks.”
Ambika Sinha can be reached at email@example.com.