A hot political environment has ignited a fire under several state legislatures, both favoring and opposing abortion. After 36 years of peace — Roe v. Wade was decided in 1973 — a sudden firestorm erupts. Why now? I suspect that two agendas are at work: to force the Supreme Court to revisit the issue and to rile up the political base of each side.

Jay Gaskill

Jay Gaskill

New abortion laws are emerging. New York has decriminalized abortion of a third-trimester viable fetus provided there is a good faith medical opinion that the would-be mother’s life or health is at stake. Alabama now bans all abortions at any stage except when necessary the save the mother’s life. Other states are outlawing abortions earlier than the third trimester if a fetal heartbeat is detected. An abortion to save the prospective mother’s life is legal in all states, but the added phrase “or health” raises problematic interpretation issues.

The Roe v. Wade decision was supported by seven of the nine justices. Justice William Rehnquist (a JFK appointee) wrote the dissenting opinion. The dissent was based on a strict reading of the constitution: “[T]he very existence of the (abortion) debate is evidence that the ‘right’ to an abortion is not ... universally accepted. ... To reach its result, the [majority] necessarily had to find ... a right that was apparently completely unknown to the drafters of the (14th) Amendment.”

As Justice Rehnquist noted, a right to privacy is not enumerated in the constitution, while liberty is protected by the 14th Amendment. But as we know, someone can be deprived of liberty only by due process of law. When overriding state legislation, the due process test “traditionally applied ... is whether or not a [state] law ... has a rational relation to a valid state objective.” But which state objective was invalid? On abortion, the states were divided and still are. The bottom line: Without Roe’s privacy rationale, the abortion questions would have been left to the states.

Roe v. Wade has survived, all imperfections accounted for, because the decision was a master political compromise. For the first time, Roe sanctioned constitutional protection for late-term unborn babies and federal legal protection for early term pregnancy terminations. The boundaries of that protection were fuzzy, framed in three trimesters and grounded in the viability of the unborn outside the womb. Remember the complaint that SCOTUS was legislating? At least peace was made.

If the Court now makes a major change in Roe, both sides will be angry. Before Roe, there was no federal Supreme Court precedent protecting abortions or protecting the unborn. What if Roe is replaced? The Supreme Court could return the issue to the states. Or it could cut through all the ambiguity by holding that an unborn is a human being worthy of strong legal protection from the moment that fertilization detectably initiates the development process. Either way, the end of Roe v. Wade will divide states, communities and individuals for decades.

Beware what you wish for.

Jay Gaskill, an Idaho native, is a recovering California criminal lawyer who left his “life of crime” for life in Idaho Falls, his old hometown where reasonable adults are still in charge.

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