GREENSBORO, N.C. (WGHP) – If Roe v. Wade wasn’t a law, what was it?
Commenters, email authors and callers are insisting that the public understands that Roe v. Wade, struck down by the U.S. Supreme Court in its Dobbs ruling on Friday, was never a “law.”
Some are calling it a ruling, which is close but the more correct word would be “decision.” That decision by the Supreme Court rendered on Jan. 22, 1973, prohibited a state from stopping a woman from having an abortion.
What the justices did on Friday in Dobbs v. Jackson Women’s Health was to decertify that decision based on their opinion that the Constitution didn’t include a clause to protect a woman’s right to an abortion.
“The word ‘law’ is ambiguous in the U.S.,” Neil Sigel, a professor of law and political science at Duke University, wrote in response to a question from WGHP. “Roe was a decision of the U.S. Supreme Court that long was ‘the law.’ It was not a ‘law’ because the latter refers to legislation (statutes).”
However, there has been a rash of “Roe-inspired” state laws that have sprung from legislatures across the nation. Some of them – 13 at last count – were so-called “trigger laws,” which specified that, should Roe be overturned by the court, abortions immediately would be banned in those states. Some of them had been around for years, but there were variables on that definition of “immediately,” too. A judge in Louisiana on Monday delayed the trigger law there.
In North Carolina, the legislature enacted a law decades ago that some legal experts feel is fairly restrictive. It includes a 20-week limit on when abortions can be obtained legally. A federal court had stayed that aspect of the law as being counter to the constitutional limits of the Roe decision. Immediate reaction was to seek the lifting of that stay.
The law also requires parental consent and a 72-hour waiting period but does allow abortion after 20 weeks in the case of saving a life or the health of the mother. It doesn’t mention rape or incest. So by that definition, Roe did determine “law” even if it wasn’t exactly “a law.”
But if Roe wasn’t “established law” – as some justices had suggested it was during their confirmation processes – then what did that decision actually accomplish?
What’s the background on the ‘decision’?
Roe was a fictional name for the late Norma McCorvey. Wade was Henry Wade, the former district attorney in Dallas County, Texas. The Supreme Court ruled by a 7-2 majority – Justice Harry A. Blackmun wrote the opinion – that state restrictions on abortion were unconstitutional.
This was based on a set of laws in Texas that established criminal charges for abortion but also, as the court found, interfered with a woman’s constitutional right of privacy, which the court found to be guaranteed under the Fourteenth Amendment.
The court’s opinion established the first trimester as a limitation on the issue, although many rights advocates have insisted that there aren’t – and should not be – any such limits. The court established the rights of the fetus began at about 24 weeks, when it could viably exist outside the womb.
Several cases, such as Planned Parenthood of Pennsylvania v. Casey in 1992, brought rulings to clarify aspects of the decision in Roe. All of them were overturned by the ruling in the Boggs ruling, although only Casey has been mentioned as significant precedent.
What happens now in North Carolina?
State Senate Leader Phil Berger (R-Eden) and state House Speaker Tim Moore (R-Cleveland) suggested in statements released by their offices Friday that they would prefer to change the law in general but would like for Attorney General Josh Stein, a Democrat, to seek the lifting of the federal court’s stay on the 20-week limitation immediately.
Stein certainly was immediate with his response: “I have a message for the women of North Carolina: You still have a legal right to an abortion in our state. North Carolina state law protects women’s reproductive freedoms, even after the Supreme Court today stripped women of their right to an abortion under the Constitution by overturning Roe v. Wade. If we want to keep our freedoms under state law, then we have to elect state officials who commit to protecting them.”
Then on Monday Stein joined with a group of 22 attorneys general from across the nation to reiterate that point, releasing a joint statement that said, in part:
“Ultimately, what harms people in some states harms us all. The future and well-being of our nation is intrinsically tied to the ability of our residents to exercise their fundamental rights, including the right to liberty, privacy, and access to abortion care. If you seek access to abortion and reproductive healthcare, we’re committed to using the full force of the law to support you. You have our word. We will continue to use all legal tools at our disposal to fight for your rights and stand up for our laws. We will support our partners and service providers. Together, we will persist.”
What could happen immediately?
Well, there always is a small chance that Democrats in Washington will become very bold and seek to codify the decision from Roe – yes, to make it truly the law. That would appear unlikely but long has been discussed. If they could take back two GOP seats in the Senate this November, though, then they could have sufficient numbers to tackle passing that legislation. Of course, one of those key races is in North Carolina, where Republican Ted Budd and Democrat Cheri Beasley are in a very close battle.
And that leads us to a more realistic approach. Republicans’ capabilities in the North Carolina General Assembly are limited, Berger, Moore and others have said, because Gov. Roy Cooper, a Democrat, would veto any further restrictions that might pass, and they lack the necessary supermajority to overturn that veto.
So they have two options: Wait until Cooper leaves office in the 2024 election or try to forge a supermajority. To reach that level of control would require the GOP to take two seats from Democrats in the Senate and three in the House this November. Under the current election map, that’s possible but far from guaranteed. But when the General Assembly draws new maps for the 2024 election – as appears most likely to occur late this year – those odds presumably would increase. Given the current divide among legislators on topics such as Medicaid expansion, sports gambling and medical marijuana, their debate on abortion likely would be rancorous.
An instant ‘last resort’?
Susan Roberts, a professor of political science at Davidson University, wrote in the Old North State Politics Blog that “North Carolina is currently considered a so-called ‘safe state’ because there are no trigger laws on the book. … According to the latest figures available from the Kaiser Family Foundation (2019), around eighteen percent of abortions in 2019 were from individuals from outside of North Carolina. These numbers are expected to increase. As reported in The Assembly, abortions in North Carolina are likely to increase from anywhere between 17,000 to 70,000 as North Carolina becomes ‘the state of last resort.’” One caveat to all of that, we don’t know if states will prosecute citizens who travel for abortions – or use abortion pills.