Legal expert answers questions about SCOTUS opinion overturning Roe v. Wade
WASHINGTON (TND) — The Supreme Court on Friday ended a half-century of a precedent set by Roe v. Wade, leaving many to wonder what the decision means for them as access to abortion is left to the states.
Professor of Legal Studies at University of Massachusetts Amherst Paul Collins spoke with The National Desk shortly after the opinion came out to answer questions about how the conservative majority came to this opinion and what it means for women and girls across the country.
What was the reasoning behind the majority's opinion?
COLLINS: The court's reasoning was based on the idea that the right to an abortion isn't mentioned in the Constitution and then they argued that the right to an abortion is not deeply rooted in the nation's history and traditions, and therefore it's not a constitutional right. And when the court approaches cases like that, they generally say it's up to the states and that's how things are going to be. Some states will have abortion rights, other states won't.
Does this set a precedent for birth control, for same-sex marriage, things that also aren't exactly mentioned in the Constitution and may not fall under that "deeply rooted" qualifier?
COLLINS: The majority opinion is very explicit that other rights that aren’t specifically identified in the Constitution like access to contraception, right to privacy, same-sex marriage, are not directly affected by the court’s decision. However, Justice Thomas in his concurrence basically says they should be and invites a reconsideration of those rights. So, I think it’s safe to say that those threats are under threat despite the language in the majority opinion.
How soon will states' trigger laws take effect?
COLLINS: It seems like for the states that have trigger laws, their laws outlawing abortion will go into effect basically immediately. If you take a broader view, it looks like within the next month or so abortion will be illegal in about half the country.
How will state abortion bans be enforced?
COLLINS: States will pass laws that will outlaw abortion but those laws are going to be written in different ways. The way they're usually written is that they criminalize providing an abortion but even if you think of say, a Planned Parenthood clinic, they provide all kinds of different services, so who is actually going to determine whether or not Planned Parenthood behind closed doors are performing an abortion? Or take a state that passes a law that criminalizes a woman who’s having an abortion. How would the state know that the woman had an abortion, right? These are very intimate, often medical procedures and it’s not clear how police officers and other law enforcement officials can actually implement the laws.
What does it mean that the Supreme Court overturned another Supreme Court decision? The conventional thinking is that once the Supreme Court decides something, that's it forever. What does this say?
COLLINS: The Supreme Court rarely overrules itself. It’s done so about 2% of the time. What makes this decision very unique is that it’s actually taking away a right that was previously granted, and so a lot of people are critical of the majority when they compare today’s decision with Brown v. Board of Education. Brown expanded rights. Today’s decision takes away rights and that’s a point that the dissenters really stress again and again in what is a scathing dissenting opinion from Justices Breyer, Sotomayor and Kagan.
What's the dissenting argument?
COLLINS: The dissenters focus on a few different points. Ultimately, they conclude that this is really a raw exercise of political power by a conservative court that is going to take away women’s reproductive autonomy, making them less than full citizens. They go at length attacking the majority's reasoning with the respect to the overruling of Roe v. Wade. But one of the ways that we know the dissenters are really, really frustrated is they left out the word ‘respectfully’ that’s usually used in a dissenting opinion between ‘we’ and ‘dissent’, and it just says, ‘we dissent.’
If the court eventually gains a liberal majority could this be reversed?
COLLINS: It could. If a liberal majority of the court were to come into power, I think we would see a revisiting of this issue. Although, I think that the legal framing would be quite different than the way Roe v. Wade was framed. I think it would focus more on the idea that reproductive freedom is central to women being full members of society, and so I think you'd see it argued more along the lines of an equal protection clause case than a right to privacy case.
Should Democrats in Congress get enough support in the Senate to codify row into law, now could a red state reject it because of this decision?
COLLINS: It's a grey area. If Congress codified abortion rights into federal law, I’m not totally convinced that the Supreme Court would be OK with that in light of today’s decision. And the reason is that it’s not clear where Congress would get that power from. They would probably claim it from the Commerce Clause but also that the court was pretty clear today, saying that the decision whether or not to grant abortion rights is up to the people to be exercised through their state representatives.
