Overturning Roe
JILLIAN WILLIAMS | MAY 24, 2022 | OPINIONS
On May 2, 2022 the Supreme Court’s draft decision for the case Dobbs v. Jackson Women’s Health Organization was leaked. The draft, written by Justice Samuel Alito, revealed that the court is likely to overturn the decision of Roe v. Wade, which has been the precedent for abortion laws since 1973. This leak has caused a new wave of conversations about abortion, both in the media and on social media, including by students at Stanton College Preperatory School. While media headlines proclaim the decision to be the end of women’s bodily autonomy and a threat to women’s rights as a whole, these claims are misleading and have caused a misconception among many of the general public.
In reality, the overturning of Roe v. Wade will not end legalized abortion in the United States. In fact, for many states, the overturning of this decision would likely have no affect on access to abortions. Overturning Roe v. Wade would simply return the power over abortion rights to where it belongs – state governments.
As explained in the draft decision, whether or not women should have the right to an abortion was never an issue that should have been decided by the Supreme Court. The purpose of the Supreme Court is to interpret the Constitution and subsequent amendments, ensuring that all legislation is in line with the Constitution. As stated in the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As such, as an issue not specifically mentioned in the Constitution or any amendment, questions of legality concerning abortions should be handled by state legislatures.
Proponents of Roe v. Wade argue that it falls under the jurisdiction of the Supreme Court based upon the Fourteenth Amendment, which states that no state can pass legislation infringing on the Constitutional rights of its citizens without the support of due process of law. The issue with this claim is that nowhere in the Constitution is abortion mentioned in any form. In order for this provision to be applied to issues not specifically addressed in the Constitution, as it is frequently in Supreme Court rulings, it is stated that the issue must be “deeply rooted in this nation’s history and tradition” or “implicit in the concept of ordered liberty.”
Regardless of one’s stance on the issue, it is clear that the question of the right to abortions is neither rooted in U.S. history nor an essential factor to ordered liberty, being that the matter is both a 20th century concept and one that is greatly debated. Thus, as outlined in the draft decision, Roe v. Wade is not justified by the Fourteenth Amendment.
While the leaked Supreme Court draft decision does indicate the projected decision, the final decision has not been made. If the Supreme Court decides to overturn Roe v. Wade, it is true that some state legislatures will choose to outlaw abortion. However, for most states, women will enjoy the same access to abortion available under Roe v. Wade as state legislatures will continue their trends of access or restriction. In order to maintain reasonable conversations about the future of abortion in the United States, media outlets need to be more transparent and upfront about the actual implications of the leaked draft decision, rather than continuing to spread unfounded messages of the end of womens rights.