April 25, 2022
(Note: This article was written before the leak of the SCOTUS’s draft opinion overturning Roe. There will be much more on our site as information and schedules of events become available. However this article does contain some factual information about the Roe decision which our members and friends may find useful in understanding the situation we face.)
The Ultimate End of Roe v. Wade Comes in June
It’s highly unlikely that Roe v. Wade in any form that we know today will survive the Dobbs v. Jackson Women’s Health Organization decision, which is expected from the Supreme Court at the end of June. This past January 22nd (2022) was Roe’s 49th and, in all likelihood, its last anniversary.
The headlines will probably not read “Roe v. Wade Struck Down by the Supreme Court,” even though we expect that to be the reality. All that must happen is that Roe’s trimester “viability” standard will be so compromised by the Court’s conservative majority in Dobbs that states will be able to put virtually unlimited restrictions on abortion procedures.
Pro-choice groups are seriously concerned that as the end of June comes into sight the media will announce that Roe has survived because abortion would remain legal in those states that allow it, misleading the public. However, women in almost half the country will not be able to access abortion as medical care in their state due to state-imposed restrictions and therefore abortion may as well be illegal for them. The number of states passing laws based on the Mississippi and Texas statutes grows almost weekly.
The Basis for the Roe v. Wade Decision
The two major legal underpinnings of the right to abortion are viability (from Roe) and undue burden (from Planned Parenthood v. Casey, 1992, which modified Roe). Examples of challenges to Roe involving undue burden would be the various waiting periods between an initial visit and the procedure, or getting the permissions of husbands or boyfriends. Viability refers to the ability of a fetus to live outside a woman’s uterus. Since viability is the standard under attack in Dobbs v. Jackson, more detail is important.
Fetal viability has changed since 1973 but not considerably. When the Roe opinion was written fetal viability was approximately 28 weeks, Today it is considered to be about 23-24 weeks, although a fetus born at 21 weeks did survive (born July 2020 at 21 weeks and 1 day). Between 24 weeks and 21 weeks gestation, survival is less than 50%.
So several things are evident. With the law in Mississippi defining viability at 15 weeks, and the law in Texas defining viability at 6 weeks of pregnancy, it’s clear to most of us that none of these laws are based on medical evidence concerning fetal viability, and are instead about simply making it impossible for women to get abortion care.
Arguments For This Change In The Definition of Viability
So do attorneys for these nonsensical viability definitions get up in court and claim that they are defending viable life at 6 weeks – long before the huge majority of women even realize they are pregnant? Actually, they do.
They are citing something in fetal development that really does happen but has nothing to do with viability. They have called this developmental stage a “standard” called “fetal heartbeat.” Advances in medicine and ultrasound technologies enable doctors to detect a “flutter” coming from the cells in the area of a fetus where a heart will eventually develop. The cells in this area are beginning to send out electrical signals. This in no way indicates viability or a formed heart that is functioning in any way. It is far from a “heartbeat.”
The Bush/Trump Supreme Court
If one wonders what has prompted this sudden rush by state legislatures to use these extreme standards of what they are calling fetal viability, the answer is simple: Because they now can.
The Supreme Court currently exercises an outsized dominance over our nation’s laws. It’s not just that conservatives control the court with a 6-3 majority. It’s also the case that 3 of the conservatives – Associate Justices Thomas and Alito, and Chief Justice Roberts – were appointed by George W. Bush. The remaining three conservatives were appointed by Donald Trump – Associate Justices Gorsuch, Kavanaugh, and Barrett. Besides being Republican conservatives, there’s something else both Bush and Trump have in common. Both became president through a majority of votes in the Electoral College, not because they were supported by the majority of actual voters.
Despite the Democratic majorities in both houses of Congress and control of the Executive Branch of our government, the Supreme Court with its powerful conservative majority could (and well may) send women and their families back 50 years to the days before Roe v. Wade.
If the Court does what we expect, we need to protest their decision when it comes down just as though it clearly strikes down Roe v. Wade, because for millions of women in our country, that will be the result.
Please stay tuned — and angry.
By Barbara Hays
Sources for this posting include articles published in the New York Times (by Adam Liptak, Nov. 28, 2021), the Washington Post (by Ariana Eunjung Cha and Rachel Roubein, Dec 21, 2021) and a post on NPR’s website by Nina Totenberg on Sept 1, 2021.
Also, many thanks to my dear friend, Kim Gandy, a past president of NOW who has spent her life defending women’s rights. Her help made this explanation infinitely better than my first draft.