The Future of Choice

DISCLAIMER: Before this article begins, it is important to mention that although abortion is largely seen as a women’s issue and this article is being written for Women’s History Month, abortion is not just a women’s issue. Abortion affects all individuals with uteruses and the ability to have periods and get pregnant; this is including but not limited to men and non-binary individuals.  

Almost 50 years ago, on January 22, 1973, the Supreme Court ruled that the Constitution recognizes a woman’s right to terminate her pregnancy by abortion via the Due Process Clause of the Fourteenth Amendment in Roe v. Wade. The Supreme Court further expanded on this in their 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they stated “…the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Since then, women’s lives have been changed forever. 

This historical precedent changes with the introduction of Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law banning abortion at 15 weeks. From a legal standpoint, the most significant part of the law in question is that it bans abortion before viability, the point at which survival outside the womb is possible. This pending Supreme Court case has the power to overturn Roe v. Wade once and for all. 

If the Mississippi law is upheld, the Court must either hold that there is no right to abortion or they will have to rewrite the precedent that Roe v. Wade set which would remove any barrier to how early a state may ban abortion. 

For many, abortion access is a vital resource. Restrictions around abortion are not just a political isue but further, a healthcare and fundamental human rights issue. In the United States, inaccesibility to abortion also holds a problematic past. 

“All the centuries of racial injustice and white supremacy, all of those things are included within healthcare in general but especially in abortion access. BIPOC and LGBT+ people oftentimes do not have equal access to healthcare, abortion, prenatal or postnatal care in general,” said Zoe King, CU Boulder student and volunteer coordinator at The Brazen Project. 

Roe v. Wade has only been in effect for 49 years, reversing this decision is symbolic in that it sets the United States back several decades in regards to progress. 

“Our country is already struggling with reckoning the impacts and harm of all the things they have done in the past and put into place and implemented. By restricting this healthcare again it’s like falling back into the same bad pattern we were trying to get out of,” says King. 

Even five years ago, overturning Roe v. Wade would have seemed impossible, but a lot has changed since then. Former President Donald Trump nominated three Supreme Court Justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—allowing for a conservative supermajority of 6-3 on the Court. Additionally, these justices were strategically picked due to their conservative values but more specifically, anti-choice beliefs as members of the Federalist Society. 

“This has been a decades-long push by conservative politicians and activist groups to get to the point where we are at. The right has been outpacing the left by orders of magnitude in terms of appointing justices to the bench whether that is at the district, federal or Supreme Court level. It’s a concerted effort over many, many years to turn the entire judiciary towards a more conservative leaning bench across the board,” said Zoe Moss, a political scientist and PhD candidate at CU Boulder. 

However, nominating justices based on ideology goes against the initial objective of the judiciary that the Founding Fathers had in mind back in the late 1700s. The Constitution was written in the context of the 18th century where there were no formalized political parties and no dominant two-party system. During that time period, the intent was to have objective and centrist judges. The Supreme Court was created with a lifetime tenure in mind in order to ensure an apolitical court and to allow for judges to change or soften their views overtime. 

Now, the process behind choosing a Supreme Court Justice nomination is strategic and political. There has been a recent trend in the nominations of very young individuals so as to ensure a long term duration of their time on the Court. There has also been a trend of nominating individuals known to be politically motivated value holders of either liberal or conservative views. By appointing certain judges with the intent of creating a specific type of judiciary system, politicians are showing that they are incredibly detached from the original purposes of the judiciary. 

However, the new politically strategic trend in Supreme Court nominations is not the only trend the Court has been susceptible to. The manner in which Supreme Court cases are chosen is also a politically strategic move. Traditionally, Justices use the “Rule of Four” to decide if they will take a case. If four of the nine Justices find value in a case, the Supreme Court will hear it. The Mississippi law at stake has been in effect since 2018 and the Supreme Court has been considering hearing the argument since 2020. Yet, they hadn’t chosen to take up the case most likely due to the fact that they didn’t have the votes to pass Dobbs—until now. 

Waiting to make a decision on this case is a clear reflection of strategy from the Supreme Court. If Dobbs had been taken on earlier (perhaps when the late Justice Ginsburg was still alive) the precedent set by Roe would continue to have been upheld. 

“The thought process is ‘we shouldn’t take on these cases until there are the right number of judges to reverse it’,” said Owen Fite, political scientist and PhD candidate at CU Boulder. 

To take a broader look at Americans views on abortion across the country, Pew Research polls show that abortion views have been stagnant over the last 30 years. 60% of Americans tend to believe that abortion should be legal in all or most cases. 

“In some ways, the courts are not representing or reflecting a change in attitudes across the United States. But what has changed is how individuals are lined up among party lines. Attitudes as an aggregate have not changed but they’ve been more in line and organized along party lines which is manifesting among political institutions and in Supreme Court nominations and decisions we are seeing,” said Fite. 

Although it is clear that Trump’s three nominations had a major impact on the Supreme Court and most likely the inevitable reversal of Roe, it can also be attributed to the drastic increase America has been seeing in partisanship as well as the dominating two-party system. With issues such as abortion, once a political party takes a stance that is seemingly pro-choice, the other party has no choice but to become the party that is predominantly pro-life. 

“What we see with blatant, overt political signaling right now, you have to take one end or the other. You can blame this with the duality of the two-party system. Individuals have felt pushed to lean on one end or the other which is why we are seeing a smaller percentage of individuals who might have contradictory partisan abortion beliefs,” said Fite. “People are being pitted into their corners.” 

While this isn’t the first time the future of Roe v. Wade has looked bleak (cases like Planned Parenthood v. Casey may come to mind), things are a bit different this time. First and foremost, the swing vote for this case would most likely be Chief Justice Roberts who historically has not been on the side of choice. Additionally, even if Roberts joined the liberal judges, it would still only be four judges which is not enough votes to maintain Roe. 

The other conservative judges have also consistently been voting together and in oral arguments have been producing lots of anti-Roe rhetoric. Dobbs also poses a major threat to Roe because it calls into question the precedent of viability, the exact thing that Roe deemed Constitutional. 

“If Dobbs is ruled in favor, then you are saying it’s not viability anymore— it can be any time. Instead of a strong line at viability, you can make your limitations as stringent as you want. What’s stopping states from making laws preventing abortion at 10 weeks, or even six? It isn’t technically illegal if Dobbs is passed,” said Moss. 

While the decision has not been handed down yet, it’s looking unpromising. 

It is highly unlikely that we will see an outcome where everything is the same, in which the Court decides to strike down this law and maintain Roe. At this point, the best possible outcome is simply a rollback on abortion laws by leaving it to state jurisdiction. Even if Roe is not overturned, there are going to be effects regardless. Currently, in states such as Utah or Texas, the ability to get an abortion is almost as difficult as if Roe wasn’t in existence because of this defferal to the states. 

“It is already largely dependent on where you live. The court will never do anything that will affect an individuals ability to get an abortion in California or Colorado. But it probably also will not have an effect on some of these southern states like Mississippi where the pushback is there,” said Fite. 

The outcome seems pretty much the same. States that already have strong abortion access will get to keep it that way, but the states that have little to no abortion access will also stay the same. In the case that Roe is struck down, even states where abortion is not protected legally,such as Colorado, may be fine as long as they have a liberal political climate. However, this means a more sinister effect for states that have a conservative political climate and no abortion protection legally.

 “That’s where we get to what the issue is: for a lot of people this will not affect them, but also for a lot of others,it will,” Fite said. “And it really just depends on where you live and what state you are a part of because that’s ultimately going to be the jurisdiction of what allows you to choose or to not.” 

As a result, with the decision of Dobbs on the horizon, there is an increasing call for equitable abortion access to be written on the state level. 

“If and when Roe v. Wade gets overturned or significantly decreased, if states have embedded that equitable abortion access that can’t be changed by any federal move. So that’s why it’s really important to call your legislator to say you’re against anti-abortion counseling center or anti-abortion laws. This way individual states can remain a safe haven for abortion access. It can help us work and try to build a future where people can get an abortion when they need it and recieve the care that they need, they want, and they deserve,” King said.

Additionally, historical precedent shows that oftentimes a Supreme Court decision is not enough to cement the certainty of the decision made by the Court. 

“Nothing is certain until you actually have legislation passed. If it’s based on a Supreme Court precedent, there’s a possibility that it could be interpreted differently. The only way to feel certain about any sort of norm, or practice like legal abortion, is the legislative branch,” said Fite. 

This was seen in the Supreme Court case Brown v. Board of Education in which the rulings of the Supreme Court were not upheld until President Eisenhower sent the 101st Airborne to insure the safety of the Little Rock Nine. 

Oral arguments for Dobbs were held in December 2021, the Supreme Court decision is expected at the end of the 2021-22 term. “The power that a Supreme Court decision has is very dependent on the political environment within other branches and within the country at large,” Moss said. “It’s just unfortunate that we’re in a situation where Roe is hanging in the balance of nine justices, most of whom are men.”