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Abortion Issue Developments

Updated: May 25

By - Tim Rosado

South Carolina Changes Enacted

The South Carolina legislature, which rejected a near total abortion ban in April, passed a slightly less restrictive measure that was subsequently signed into law by the state's governor (May 25).

The law ban abortions after six weeks, which is generally when a fetal heartbeat is detected. Limited exceptions are provided for rape, incest, the health of the mother, and fetus viability. Prior state law permitted forms of abortion up to about 22 weeks.

Violators of the new law face felony charges that include fines of $10,000 and potential prison time of up to two years. Physicians or medical providers found guilty of performing illegal abortions will have their medical licenses revoked.

The new law faces legal challenge, however. Similar restrictions enacted in 2021 were struck down by the state Supreme Court for violating the privacy protections of the state's constitution.

North Carolina Law Enacted

North Carolina enacted its latest abortion law that limits most abortions to 12 weeks with exceptions for rape or incest through 20 weeks, 24 weeks for fetal anomalies, and no limit in the case of protection of the life of the mother.

The law also limits use of abortions medication after 10 weeks of pregnancy, and with requirements such as an in-person consultation with a doctor ahead of the procedure.

The state was able to enact the restrictions following the party switch of a member of the North Carolina House providing Republicans with a veto-proof majority in both the House and the Senate. While the state's governor vetoed the legislation, the state legislature overrode the veto.

Montana's Dueling Actions

The Montana Supreme Court upheld upheld abortion rights in the state (May 12) voting unanimously to support a lower state court decision permitting advanced practice registered nurses to legally provide abortions in the state, and also reaffirming 1999 state-court precedent in a separate case that abortion is a medical choice protected by the privacy language of the state's constitution.

In contrast with the Court's decision, Montana enacted two packages of measures related to abortion which emphasize abortion restrictions (May 3 and May 16). One of the core enacted provisions is one that attempts to clarify that the privacy clause of the state's constitution does not guarantee the right to an abortion, but that measure is likely now meaningless with the state Supreme Court decision.

Other key measures enacted by the state include:

  • Limiting abortion to the point of fetal viability, at about 24 weeks, unless the mother's life is at risk.

  • Limiting the use of dialation and evaculation abortions to 15 weeks, except for medical emergencies in which the child would not survive outside of the womb.

  • Establishes a state right of medical conscience to protect nurses and physicians who have decided they cannot conscientiously perform an abortion procedure.

Nebraska Restrictions

After the state's legislature turned back a measure (April 27) to impose a "heartbeat" abortion restriction (i.e., a prohibition at the detection of cardiac activity, generally at six weeks), Republican leadership packaged a new, less restrictive abortion measure–generally limiting abortion to 12 weeks–along with a measure banning gender-affirming medical care for minors.

The combined measure passed the legislature (May 19) and will be enacted into law by the state's governor.

Louisiana Rejects Changes

Louisiana's state legislature turned back an attempt, supported by the state's governor, to ease the state's abortion law by permitting an exception in the case of rape and incest. The proposal was rejected in committee.

Abortion is generally banned in the state unless necessary to save the pregnant person's life, to prevent serious risk to the pregnant person's physical health, and if the fetus is not expected to survive the pregnancy.

Emergency Care & Federal Law

The Department of Health and Human Services (HHS) reminded hospitals nationwide (May 1) of their legal obligation to provide necessary stabilizing medical care under Federal law: the Emergency Medical Treatment and Labor Act (EMTALA).

An investigation of two hospitals by HHS found that they failed to offer abortion-related emergency care to a woman that her doctors determined was necessary given her medical condition, because the hospitals have policies against providing abortions.

The woman had experienced a pre-term, premature rupture of membranes, and as a result was advised that her pregnancy was no longer viable. Her doctors advised her that her condition could rapidly deteriorate (the woman survived), which necessitated stabilizing medical intervention to prevent infection, hemorrhage, and potentially death. The doctors could not provide the treatment because their hospitals prohibited treatment that could be considered an abortion.

North Dakota - Unmatched?

North Dakota enacted (April 24) perhaps the toughest anti-abortion law in the US. The law bans abortion after six weeks of pregnancy (down from 22 weeks), with no exceptions for rape or incest. An exception is permitted in the case of preventing "death or serious health risk" of the mother.

The state constitutionality of abortion restrictions under prior state law are currently being challenged before the North Dakota State Supreme Court. For now, the newest law can go into effect, but it is likely to face legal challenge, and also could be overruled with any State Supreme Court ruling on the prior law.

Abortion Medication

The US Supreme Court ruled (April 21) that the abortion medication mifepristone can remain on the market and be dispensed consistent with current Food and Drug Administration (FDA) standards, but only while an appeal is being considered on a pending Federal district court case. A Louisiana Federal Appeals Court hearing was held on the appeal on May 17.

The Appeals Court (5th Circuit) is considering a case against the FDA on appeal from a Texas District Court district court decision. The Texas District Court ruling (April 7) supported a plain-reading view of the Comstock Act (the original version passed in 1873) that the law effectively forbids the mailing of abortion-inducing drugs. The District Court also agreed with several arguments that the FDA did not properly approve mifepristone decades ago, or consider through proper administrative public review procedures the safety side effects that became known over time. The judge did not consider the other common abortion-inducing drug - misoprostol - which is often used in combination with mifepristone. The Justice Department outlined its counterarguments against the lawsuit in January.

While the appeal is being heard, the Appeals Court ruled that mifepristone could be used only up to an upper limit of seven weeks of pregnancy (instead of the 10 weeks approved by the FDA), and alsothat the medication could not be sent through the mail while the appeal is being considered. The Supreme Court subsequently denied the Appeals Court-levied restrictions, at least until after an Appeals Court ruling. After any Appeals Court decision the matter could be elevated to the Supreme Court, which may have to rule again on any lower-court-imposed restrictions.

In a separate Washington state Federal District Court case, 17 states and the District of Columbia filed a lawsuit against the FDA concerning dispensing restrictions the agency put in place in January. The plaintiff states were seeking a requirement that the FDA keep the prior availability of mifepristone in place for those states filing the lawsuit. The parties included Arizona, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

In his decision, the Federal judge determined that the FDA must maintain the “status quo” with respect to its prior availability standards of mifepristone before the January dispensing changes, as he generally agreed with plaintiffs that the FDA had not gone through proper administrative review procedures before putting more restrictive dispensing measures in place. The Justice Department says it is considering the results of the ruling but has not yet committed to an appeal.

With the two District Court decisions, the FDA basically has one lawsuit requiring mifepristone be taken off the market for now, and the other requiring no change in the medication's availability (at least for some states). Research collected by the Guttmacher Institute found that abortion medication was used for more than 50% of US abortions in 2020.

Florida Enacts an Enhanced Ban

Florida enacted significant enhancements (April 13) to its already restrictive abortion law enacted 2022. The 2022 version of the law is currently being challenged in state courts.

Under the new 2023 law, abortions will be prohibited after six weeks, down from 15 weeks, even though women often do not realize they may be pregnant after six weeks. There are exceptions for rape, incest and human trafficking, or in cases where a baby has a fatal fetal abnormality up to 15 weeks, provided the pregnant person has documentation such as a police report or restraining order in the case of rape and incest. Last year's law did not provide exemptions for rape, incest, and human trafficking.

This year's enhanced restrictions will not go into effect until the Florida State Supreme Court rules on the constitutionality of restrictions on abortion rights connected the 2022 law and under the privacy clause of the state's constitution. While the Court had previously upheld such rights, Court membership is now more conservative and prior precedent has an increased potential to be overturned.

Idaho & "Abortion Trafficking"

Idaho enacted a law (April 5) that is intended to limit the ability of minors to travel out-of-state for abortions. The law makes it a felony crime for so-called "abortion trafficking," where an adult helps a minor––without parental consent and with the intent to conceal the action from parents––to obtain an abortion or obtain an abortion-inducing drug.

As abortions are generally illegal in Idaho, such an individual would need to travel out of state to receive an abortion or, in the case of abortion-inducing drugs, a minor might need an adult's help to obtain such drugs within a state (e.g., providing help to get the medication for the minor through the mail). A felony conviction could result in a 2-5 year prison sentence.

DOD & Abortion Care Access

Senator Tommy Tuberville (R-AL) placed a hold on all Defense Department promotions requiring Senate approval over the agency's abortion policy. The Senator has called the policy "illegal," connecting the policy to Federal law banning Federal funding support for abortions.

The Department of Defense issued (February 16) several policies related to reproductive health care which can impact service member decisions on, and access to, abortion.The policies cover command notification of pregnancy, administrative absence for non-covered reproductive health care, and travel allowances for non-covered reproductive health care.

The policies do not provide Federal funding for abortion. Through the new/updated policies, service members will have more time to notify commanders about a pregnancy (i..e, up to 20 weeks) giving them more time to decide and act on reproductive healthcare decisions; will have the ability to request administrative leave from their duty station to receive reproductive care without being charged leave, which could be important if a local area does not offer or permit relevant care; and will potentially have the ability to receive travel and transportation allowances when local access to non-covered reproductive health care services is not available.

It is on the last matter of travel and transportation allowances that the Senator is primarily asserting illegality of the Department's policies.

Oklahoma is Forced to Loosen Its Law, Slightly

The Oklahoma Supreme Court issued a ruling (March 21) that says the state's constitution ensures women have a right to abortion when pregnancy risks their health, not just in a medical emergency under the state's restrictive abortion law.

The Court ruled that a woman has the right under the state Constitution to receive an abortion to preserve her life if her doctor determines that continuing the pregnancy would endanger her life due to a condition she has or is likely to develop during the pregnancy.

The Court declined, however, to issue a ruling on any broader abortion rights protections that may be implicit under the state's constitution.

Wyoming Bans Abortion Medication

Wyoming became the first state to enact a specifically-targeted ban on abortion medication (March 17), though some states have universal abortion bans that include medication-induced abortions.

Wyoming’s abortion pill law will take effect on July 1, making it illegal to "prescribe, dispense, distribute, sell or use" abortion-inducing medication. Doctors face misdemeanor penalties for violating the law, including up to six months in prison and a $9K fine. Pregnant patients, however, would be exempt from charges and penalties.

Exceptions in the new law include contraception provided before pregnancy, treatment tied to a natural miscarriage; treatment to prevent "imminent peril" (physical, not psychological or emotional) that substantially endangers the mother's life or health; or pregnancy as the result of incest.

Pharmacies & Abortion Medication

Walgreens has decided that it will not dispense abortion medication within or to persons in states threatening legal action against the company, thought it is has not ruled out future dispensing of abortion medications that cross state lines though the mail system to states with permissive abortion laws and rules.

Walgreens apparently responded, and provided assurances to, each of the 20 Attorneys General who signed on to a letter (February 1) threatening legal action against pharmacy retail companies if they moved forward with plans to dispense abortion medication, including through the mail system which could lead to such pills crossing state lines.

Ensuring that the companies “are fully informed of the law, ” the letter implied that pharmacies would be violating both Federal law and laws within those states with restrictions on abortion. The letter argued that while the Biden Administration issued a legal opinion supporting the dispensing of such drugs in the mail, it is only an opinion and not what the law permits in its strict reading. The letter said that the Biden Administration’s opinion “fails to stand up even to the slightest amount of scrutiny” representing a “ bizarre interpretation” that will not stand up to judicial review.

Further, these letter signatory states claim that abortion pills are “far riskier than surgical abortions,” and “invite” an increase in abortion coercion because there is no use oversight.

Other major pharmacies have so far not commented on their way-forward plans in light of the Walgreens decision and state legal threat, such as Costco, Walmart, CVS, Rite Aid, Kroger and Albertsons.

In January, the FDA finalized a rule changing the labeling of abortion drugs so that more retail pharmacies can dispense the medication if certification requirements are met. Prior labeling had effectively limited dispensing to a subset of speciality offices and clinics given safety concerns.

Justice Legal Opinion on the Mailing of Abortion Medication

In December, the Department of Justice (DOJ) issued a legal opinion (December 23) for the U.S. Postal Service (USPS) that provides a legal basis for the Service permitting the mailing of abortion drugs to states that have restrictive abortion restriction laws.

The overarching summary legal basis of the DOJ opinion is that because there are “manifold ways” in which recipients can use such drugs legally, including to produce an abortion, “the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.” Long-standing law (the Comstock Act) , which has been updated numerous times and addressed through cases in the courts, has left some questions about the legality under Federal law of the mailing of abortion-related drugs––mifepristone and misoprostol.

While the opinion provides some assurance for the USPS (and other shippers) regarding such drugs flowing through the mail system, the opinion does not address state-level legal actions against persons or organizations sending or receiving the drugs.

Presidential Memo on Abortion Medication Access

President Biden signed a memorandum (January 22) on abortion medication access. The memorandum does not take specific actions beyond directing the Department of Health and Human Services (HHS), in partnership with the Justice (DOJ) and Homeland Security (DHS) departments, to:

  • consider new guidance to support patients, providers, and pharmacies who wish to legally access, prescribe, or provide mifepristone;

  • consider new actions to ensure patients can access legal reproductive care, including medication abortion from a pharmacy, free from threats or violence; and,

  • provide recommendations on additional ways to address barriers faced by patients, providers, and pharmacies in safely and legally accessing or providing medication abortion, consistent with evidence-based requirements set by the FDA.

Kentucky Abortion Ban Remains in Place

The Kentucky Supreme Court ruled (February 16) that the state's prohibition on nearly all abortion after six weeks of pregnancy can remain in effect while the constitutionality of the law under the state's constitution is being considered. Kentucky is one of numerous states that had a so-called "trigger law" that went into effect after the US Supreme Court overturned its Roe v. Wade landmark abortion rights opinion in 2022.

Minnesota Abortion Rights Law

Minnesota enacted (January 31) a new law making it clear that the state's current constitution "establishes the principles of individual liberty, personal privacy, and equality" to include "the fundamental right to reproductive freedom." Reproductive freedom is defined as the right to "make autonomous decisions" about reproductive health such as "the fundamental right to use or refuse reproductive health care."

House Republican Bills

The new Republican-led majority of the House of Representatives approved (January 11) two abortion-related bills as part of its initial legislative priorities.

The bills:

  • The Born-Alive Abortion Survivors Protection Act (H.R.26) requires that health care practitioners exercise skill, care, and diligence to preserve the life and health of child born alive during an abortion procedure and also must transport and admit the child to a hospital; requires the reporting of violations of law to law enforcement authorities; penalizes the intentional killing of a born-alive child through fines or up to 5 years imprisonment; and, gives the mother of the abortion survivor a civil cause of action against the abortionist and protection from prosecution. Opponents of the proposal argue that this legislation does nothing more than further stigmatize abortion and abortion care providers; that, the type of concern suggested by this legislation does not actually exist and healthcare providers are already bound in current law to provide appropriate care to living persons. The House approved the bill on a party-line vote of 220-210, with one Democrat voting "present" and three Republicans not voting.

  • A Sense of the Congress resolution (H.Con.Res.3) that condemns recent attacks of vandalism, violence, and destruction against pro-life facilities, groups, and churches; recognizes the sanctity of life and the important role pro-life facilities, groups, and churches play in supporting pregnant women, infants, and families; and calls upon the Biden Administration to use all appropriate law enforcement authorities to uphold public safety and to protect the rights of pro-life facilities, groups, and churches. Opponents question this legislation partly on the basis that it fails to condemn similar events against abortion rights supports; in other words, any measure like this should address problematic actions against both sides on the issue. The House approved the bill by a 222-209, with three Democrats joining all Republicans to support the bill. Three Republicans did not vote.

No action is expected by the Senate on either bill, which means that neither will be enacted during the current 118th Congress.

South Carolina Law Overturned

The South Carolina Supreme Court overturned in a 3-2 decision (January 5) a South Carolina law banning abortions when fetal cardiac activity is detected (generally at about the sixth week of pregnancy), on the basis that the law violates the privacy provisions of the state's constitution.

The state's constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.” The "unreasonable invasions of privacy" is the key term here given that abortion-rights advocates have been undertaking state constitution-based challenges in a number of states on the basis of privacy and equal rights. The South Carolina Supreme Court decided that privacy protections do extend to abortion.

It is important to note, however, that court's majority noted that the right to abortion in the state "“was not absolute, and must be balanced against the State’s interest in protecting unborn life.” That means the state can still seek another abortion-restriction law, though presumably one that is less restrictive than current law.

Idaho Law Ruled Legal

In contrast to the South Carolina decision, the Idaho Supreme Court ruled in a 3-2 decision (January 5) that there is no implicit right within that state's constitution to abortion; that the state has both a "legitimate interest in protecting prenatal fetal life in all stages of development, and in protecting the health and safety of the mother." This means that the state's abortion law can remain in effect which prohibits abortion in most cases, except if necessary to save the life of the mother or in cases of rape and incest. While the state's abortion restrictions can remain as a result of this decision, a Federal judge issued a preliminary injunction in August against an Idaho abortion law punishing doctors who perform perceived non-compliant abortions related to protecting the health of a mother. That injunction currently remains in effect.

The Department of Justice (DOJ) filed a lawsuit against the State on the basis that the law "presumptively criminalizes all abortions, making it a felony for doctors to provide emergency treatment required by federal law, even where a denial of care will likely result in the death of the pregnant patient."

DOJ argued that the law "places medical professionals in an impossible situation: they must either withhold stabilizing treatment required by ... [the Emergency Medical Treatment and Labor Act - EMTLA] ... or risk felony prosecution and license revocation." DOJ is seeking a declaratory judgement that Idaho’s law violates the Supremacy Clause of the Constitution; a declaratory judgment that Idaho may not punish medical providers based on their performing an abortion authorized by federal law; and, an injunction prohibiting Idaho’s enforcement of the law "to the extent that it conflicts and prevents physicians from providing the emergency treatment that federal law requires."


Older Developments

Older Iowa Law Remains on Hold

An Iowa state court declined (December) a request by the state's governor to permit a 2018 state abortion restriction law to go into effect. The law, which banning abortions when fetal cardiac activity is detected (generally at about the sixth week of pregnancy), was deemed unconstitutional in 2019 on the basis that it violated the due process and equal protection guarantees of the Iowa's constitution.

The state's governor believed that because the state's Supreme Court had ruled separately that abortion was not a right under the state's constitution, that the 2018 law could should be permitted to go into effect. Ultimately, the future of the 2018 law will now likely be decided by the state's Supreme Court.

Kansas Abortion-Pill Law Stopped

A Kansas State Court reinstated (November 23) a temporary state appeals court injunction against a 2011 state law preventing doctors in the state from administering abortion medication via telemedicine. Under the law, such medicines have to be given to patients in the same room as the doctor.

The underlying lawsuit (from 2019) questions the constitutionality of the law under the state's constitution. While a state court will ultimately decide on the lawsuit, until that time the temporary injunction against the state's enforcement of the law will remain in place.

2022 State Ballot Abortion Measures

Five states included ballot measures for the 2022 elections to either restrict abortion rights (Kentucky and Montana), or enshrine rights within state constitutions (Vermont, Michigan, and California).

The November ballot measures included:

Kentucky - a measure that would have added language to the state’s constitution that citizens do not have a right to abortion and that the state is not required to provide government funding for abortion. The measure failed by more than 52% of the vote.

Montana - a measure that would have established that infants born alive at any stage of development are legal persons; and, that medical care would be required for any infant born alive after an attempted abortion, induced labor, or other method. Criminal penalties would have been imposed on non-compliant health care providers. The proposal was viewed as less direct way to restrict abortion care. The measure failed by nearly 53% of the vote.

Vermont - a measure to add language to the state’s constitution providing that all individuals have a right to personal reproductive autonomy. The measure was approved by nearly 77% of the vote.

Michigan - a measure to add language to the state’s constitution to establish an individual right to reproductive freedom, in this case defined as the right for individuals to make all decisions about pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility. The measure was approved by nearly 57% of the vote.

California - a measure to prohibit the state from interfering with an individual's reproductive freedom, including the rights to choose to have an abortion and use contraceptives. The measure was approved with nearly 67% of the vote.

Kansas - the November 2022 ballot measures follow what was considered to be the most significant ballot measure of the 2022 election cycle in the Kansas primary election. The measure, which failed, would have modified the state's constitution to say that nothing in the constitution creates a right to abortion or requires government funding for abortion, and that the state legislature has the authority to pass laws regarding abortion. The Kansas ballot measure was in response to a 2019 state supreme court case which resulted in abortion remaining legal even if Roe v. Wade was overturned (which it eventually was in 2022). At the time, the state court decided in favor of abortion rights based on the Kansas Bill of Rights providing that "all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The state's court decided that these words provide "substantive rights" that include "a woman's right to make decisions about her body," including abortion decisions.

Georgia Law Overturned

A Georgia state court overturned (November 15) a 2019 Georgia law (the LIFE Act) that banned abortions for persons when early cardiac activity is detected, or generally as early as 6 weeks. The state had deemed that the law was able to go into effect when Roe v. Wade was overturned.

The state court ruled that because Roe v. Wade-guided abortion rights existed at the time the law was enacted, then the new law could not be enforced as it violated the U.S. Constitution at the time, and was therefore invalid. The court said that the state could pass a new law given the new Supreme Court case precedent. Georgia says it is appealing the decision. The judge in the case believes that states are not at liberty to pass laws that are clearly contrary to established Constitution-based court decisions.

For the near term as the case is further adjudicated, however, Georgia will need to permit abortion up to 20 weeks of pregnancy in most cases.

Abortion Rights Protection Votes

In the wake of the Supreme Court’s landmark new ruling on abortion rights that overturned Roe v. Wade, the US House of Representatives of the last Congress voted (July 15) on two abortion rights bills.

The House voted to approve the Ensuring Access to Abortion Act of 2022 (H.R.8297) by a vote of 223-205-3, with all Democrats and three Republicans voting for the bill. Three Republicans did not vote. The bill would prohibit anyone acting under State law from interfering with a person's ability to access out-of-state abortion services by preventing, restricting, impeding, or retaliating against such persons. This includes both persons seeking an abortion and doctors who perform services out-of-State.

The House also voted to approve the Women’s Health Protection Act of 2022 (H.R. 8296) by a vote of 219-210-2, with all but one Democrat voting for the bill and all but two Republicans voting in opposition. Two Republicans did not vote. This legislation is essentially the same bill that passed the House last September that would secure within law a women’s right to an abortion through a statutory right for health care providers to provide, and for their patients to receive, abortion care without medically unnecessary restrictions, and limitations. The bill also would ban State law actions that delay access to an abortion.

The Senate took no action on either bill. The Senate failed to overcome primarily Republican opposition (by a vote of 49 to 51) to consider the Women's Health Protection Act. Senator Joe Manchin (D-WV) voted against consideration of the bill, arguing that legislation was “too broad.” Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK), who also voted against the bill but who have stated support for codifying Roe v. Wade in law, claimed that this particular legislation did not protect basic “conscience protections” for health care providers who have religious objections to performing abortions.

Emergency Care

The Department of Health and Human Services (HHS) announced (July 12) what it says is "new guidance and communication" in a letter to providers regarding the rights of women to abortion services under life-saving emergency care situations. This is particularly important for current/future State laws without an abortion exception in the case of the life/health of a mother.

The letter states that the Emergency Medical Treatment and Active Labor Act (EMTALA) protects provider "clinical judgment" and the action they take in providing "stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state" and that the law "requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures." Stabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy etc.).

Supreme Court Landmark Decision on Abortion

The Supreme Court overturned Roe v. Wade (June 24) in a landmark opinion. Justices in the majority included Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. Justices Breyer, Sotomayor, and Kagan issued an opposing opinion. Chief Justice Roberts did not join the majority opinion, but filed his own that argued he would not have overturned Roe v. Wade but instead would have merely upheld Mississippi’s law that was the focus of the case before the Court.

The majority opinion is similar to the draft opinion leaked to the media earlier this year. The opinion holds that there is no basis in the Constitution on abortion rights in that the Constitution does not make any explicit reference to such rights, and that the use of the Due Process Clause of the 14th Amendment in justifying an implicit right to permissible abortion within Roe v. Wade was not valid. In Roe v. Wade, the Due Process Clause was used to justify a person's "right to privacy," which effectively translated into the protection of a woman's right to choose. That right was not absolute under Roe v. Wade; it has until now been balanced against governmental interest in protecting both women's health and prenatal life. However, the new majority opinion provides that the use of the Due Process Clause is not valid in this situation because abortion rights have not been rooted in our nation's history and traditions (despite the last 50 years) and therefore cannot be established as an implicit Constitutional right.

Ultimately, the majority opinion does not take a view of abortion itself, only that it should no longer be considered a constitutional right. That means that each State now has the right to decide the law for itself. And, that effectively means that women and girls in many States can be denied by a State law (instead of the restrictions via Roe v. Wade) from receiving an abortion. Women and girls in States that do not permit abortion and who do not have the resources to travel to permissive States will either carry children to term or will seek abortions through illegal/unsafe means within their non-permissive State.


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