Content Warning: Contains discussion of abortion
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority"
Article III, Section 2 of the United States Constitution
In the United States, a Supreme Court draft ruling to overturn Roe v. Wade was leaked to the press in May 2022, and confirmed just this week, sparking outrage among citizens and general anxiety over the future of women’s rights in the country. The overturning of Roe v. Wade by the SCOTUS has been characterised to an exaggerated degree by partisan media outlets on both sides of the political spectrum as heralding the end of abortion in the US.
This article will analyse the impact of such a ruling in the context of the federalist legislative framework of the United States returning the issue of abortion's legality to legislatures at the state level. An observer of this debate may notice there seems to be a disconnect between this anger and what the draft ruling actually means. Namely, what the actual effect of overturning Roe would be regarding the legality of abortion.
The Supreme Court
The Supreme Court of the United States was founded under the Constitution and took shape under the Judiciary Act of 1789. It is one of three branches of the Federal Government, along with the Executive and Legislative branches. Supreme Court Justices are appointed by the President and approved by the Senate. Effectively, the public has no say in who is selected. The number of Justices has changed a few times since its inception but since 1869, there has been a total of nine serving at one time. Of those nine, one is appointed the Chief Justice, currently Chief Justice John G. Roberts. At the time of appointing, the Justice must make a Constitutional oath and a Judicial oath. The Constitutional oath reads:
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The oath speaks to the mission of the Supreme Court, which is to uphold the Constitution and administer justice according to it. They are the final arbiters of federal law and their purpose is to ensure equal justice for Americans in constitutional government. If they find that legislation is in direct conflict with the Constitution or does not fit within its bounds, they can overturn it and their judgment is final.
Pace v. Alabama, an 1882 ruling against interracial marriage was overturned in 1967 by Loving v. Virginia. Other examples of reversed rulings include Bowers v. Hardwick which was overruled by Lawrence v. Texas and Plessy v. Ferguson which was overturned by Brown v. Board of Education. While it is unusual for the Supreme Court to overturn a ruling, there is precedence for it.
The Constitution was written in very general terms to accommodate for the future. It is up to the Justices to interpret and determine what would fall under Constitutional jurisdiction. The Justices are limited in their role; they can only resolve controversies and are unable to function in an advisory capacity. In summation, the Supreme Court sets the standard for what is considered Constitutional. They have the power to invalidate anything they determine oversteps that mark.
States Rights vs. Federal Government
Any legislation deemed unconstitutional by the US Supreme Court does not mean it could not come into effect. It would be up to the states to draft and pass the legislation in their own government where separation of powers exists. One such separation is within the federal government between the three branches, and the second is the separation between states and the federal government. The US Constitution allowed for states to retain most of their sovereignty, but the federal government could intervene if it would fit national interests. This clause is the supremacy clause found in Article VI of the document. This system of separation is known as Federalism. The fourth president of the United States and staunch federalist, James Madison, argued the Constitution maintained state sovereignty by limiting the federal government. In theory, the powers given to the state governments are almost indefinite.
Within states' rights versus the federal government debate, there is the theory of constitutional constructionism or original intent. Justices who ascribe to this theory follow the Constitution to the letter - anything explicitly stated would be deemed unconstitutional. The opposing theory is loose constructionism, which allows for broader interpretation and the use of discretion. Justices determine if a ruling is constitutional based on what end of the spectrum they fall under. A ruling being overturned means the Supreme Court felt it was not a constitutional issue and, therefore, would be relegated to the states to legislate.
Roe v. Wade
The Supreme Court has made headlines after overturning Roe v. Wade, the federal government ruling which legalised abortion. This article will not seek to make an argument for either side of the debate but rather explore what will happen if the ruling is overturned.
Under the supremacy clause of the US Constitution, the Supreme Court’s decision supersedes that of a state government. In 1973, the landmark case Roe v. Wade made abortion legal in all fifty states, regardless of any contemporary state laws on the issue. The ruling is facing scrutiny because Justices have questioned whether it is an issue covered in the Constitution or Bill of Rights.
Justice Alito, the author of the opinion, has stated the connection of Roe v. Wade (and the 1992 decision Planned Parenthood v. Casey, which upheld the right to an abortion) to the Constitution is weak and is not a decision that should be made by the Supreme Court. He stated that, as Supreme Court Justices are not elected representatives of the people, it is not their place to make this decision. An overturn of the rulings would return the decision-making power to the states’ elected representatives.
If this ruling is overturned, any state that has stricter regulation (such as gestational limits) than Roe v. Wade or an outright ban on abortion will revert back to those state laws. As of now, twenty states have abortion bans or set strict gestational limits. Ten other states are currently in an uncertain state. The overturn of Roe v. Wade would make abortion illegal in these states in the aftermath of the overturn but state lawmakers have stated they will begin the process of legalising it or have already begun that process since the draft opinion was leaked. In the other twenty states, abortion will continue to be legal and accessible.
While the overturn of Roe v. Wade will make abortions more difficult in some states, this would not be a wide-sweeping ban on it. Rather, the discussion moves from the federal government to the states who will use their elected governing bodies to enact legislation.