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Roe v Wade

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Roe v. Wade: The Constitutional Right to Access Safe, Legal Abortion

Roe v. Wade, which was decided by the Supreme Court on January 22, 1973, affirms the constitutional right to access safe, legal abortion. More than 40 years later, Americans overwhelmingly support the decision.

Today, 72 percent of Americans — including a majority of Democrats, Independents, and Republicans — don’t want to see Roe v. Wadeoverturned. The data is clear: Despite attacks on our rights, Americans support Roe v. Wade and the constitutional right to access abortion.

URGENT! Roe v. Wade is at Risk

Trump's Supreme Court nominee, Brett Kavanaugh, has a record of ruling against access to safe, legal abortion.

More than 25 million women of reproductive age across America are poised to lose access to abortion in their home states if Brett Kavanaugh becomes the fifth vote to overturn Roe v. Wade. If confirmed, Kavanaugh's rulings would affect abortion access for generations to come.

Urge your senators to oppose his nomination NOW!


Abortion Access: Then & Now

Roe wasn’t the beginning of abortion in America — rather, it allowed people to access abortion legally and prevented people dying from unsafe, illegal abortions.

In 1965, illegal abortions made up one-sixth of all pregnancy- and childbirth-related deaths. A survey conducted in the1960s found that eight in 10 women with low incomes in New York City who had an abortion attempted a dangerous self-induced procedure.

But now that abortion is a legal right thanks to Roe, it’s become one of the safest medical procedures in the United States — with a safety record of over 99 percent. Also, because abortion is legal, people who decide to have an abortion can receive support throughout the process from medical professionals.

Attacks on Roe v. Wade

The right to safe and legal abortion has been the law of the land for more than 40 years, and is a part of the fabric of this country. Roe v. Wade is clearly established precedent, and it shouldn’t be up for debate. And yet, opponents of abortion have made it increasingly harder for people to access — and these threats are not slowing down.

Brett Kavanaugh's Supreme Court Nomination

President Trump made a clear promise to nominate judges who would "automatically" overturn Roe v. Wade. His nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat was widely celebratedby anti-abortion groups as an opportunity to do just that. Kavanaugh’s nomination was vetted and approved by the Federalist Society and the Heritage Foundation, two anti-abortion groups.

Our new research found that 20 states are poised to ban abortion if Roe v. Wade is overturned. That means over 25 million women of reproductive age — or more than a third of women of reproductive age in America — could lose access to safe, legal abortion is Kavanaugh is confirmed to the Supreme Court. If senators vote to confirm him, he'd also likely have the chance to rule on a total of 13 pivotal abortion cases within his first year on the bench.

Kavanaugh has a long record of ruling to limit access to safe, legal abortion:

  • Just last year, he tried to use his judicial power to prevent a young undocumented woman in U.S. custody from accessing a safe, legal abortion.

  • He praised a dissent in Roe v. Wade, calling the constitutional right to abortion a "freewheeling" reading of the Constitution.

  • When the Senate asked Kavanaugh whether Roe v. Wade was decided correctly or whether he recognizes the right to privacy, he repeatedly dodged the question.

  • Recently leaked emails show that Kavanaugh doesn't consider Roe v. Wade to be settled law — or consider it safe from being overturned.

Unless the Senate rejects his nomination, Kavanaugh's ruling could limit our access to safe, legal abortion for generations to come.


Looming Abortion Restrictions

As part of a broader effort to chip away at Roe v. Wade and ultimately ban abortion nationwide, anti-abortion politicians have been pushing a variety of bills in Congress that would restrict access to abortion at any point during pregnancy. That includes efforts to pass a harmful nationwide ban on all abortions at 20 weeks of pregnancy.

Existing Federal Abortion Ban

An abortion ban that became law in 2003 and upheld by the Supreme Court in 2007 criminalizes certain abortion procedures in the second trimester of pregnancy — procedures that doctors say are often the safest and best to protect women's health.

State Attacks on Roe v. Wade

In Roe v. Wade, the U.S. Supreme Court recognized that the U.S. Constitution protects a person's right to make their own medical decisions, including the decision to have an abortion. In the more than 40 years following that landmark ruling — in decisions including Casey v. Planned Parenthood of Southeastern Pennsylvania and Whole Woman’s Health v. Hellerstedt — the Supreme Court has never wavered from this principle.

Despite this precedent and Americans' consistent support for Roe v. Wade, anti-women’s health state legislators continue to attack abortion access through ballot measures and legislative restrictions. In the first quarter of 2018, 37 states introduced 308 new abortion restrictions. Currently, at least 20 states are poised to ban access to abortion if Roe v. Wade is overturned.

Americans Support Roe v. Wade and Don't Want it Overturned

Support for access to safe, legal abortion is at a record high.

72 percent of Americans don’t want to see Roe v. Wadeoverturned.

That's the highest rate since the case was decided more than 45 years ago, and it includes people who voted for Trump.

Across the political spectrum, Americans oppose overturning Roe v. Wade.

Support for Roe v. Wade by political party includes:

  • 53 percent of Republicans

  • 76 percent of Independents

  • 86 percent of Democrats

Moderates overwhelmingly support Roe v. Wade. That includes:

  • 71 percent of self-described moderate Republicans and liberal Republicans

  • 82 percent of moderate and conservative Democrats

Roe v. Wade has strong support from Catholic Americans.

Six in 10 Catholics support the decision.

Young people are especially supportive of Roe v. Wade.

And their approval is higher than ever. Eighty-two percent of 18-29 year olds support Roe v. Wade.

People of color overwhelmingly support Roe v. Wade. That includes:

  • 79 percent of African Americans

  • 71 percent of Latinxs

  • 74 percent of Asians/Pacific Islanders

Americans simply don't believe that politicians or judges should be making personal decisions for people about their pregnancies.

Ensuring That Women Have Health Care, No Matter What

Planned Parenthood is America’s most trusted provider of reproductive health care. Planned Parenthood’s expert health care professionals are dedicated to offering all people high-quality, affordable medical care.

One in five American women has chosen Planned Parenthood for health care at least once in her life. Planned Parenthood knows firsthand why it’s so critical that everyone have access to a comprehensive range of reproductive health care services, including safe and legal abortion.

Roe v Wade is 'precedent,' Kavanaugh says, but there's more to the future of abortion

Updated 11:43 AM ET, Thu September 6, 2018

Washington (CNN)Supreme Court nominee Brett Kavanaugh on Wednesday described Roe v. Wade's right to abortion as settled -- "important precedent" -- yet he has also narrowly interpreted when a woman can exercise that right.

His past views, reinforced by testimony before the Senate Judiciary Committee, suggest Kavanaugh would permit government to impose stricter regulation of abortion, for example, with additional requirements that could delay the procedure or in stiffer rules for physicians who would perform it.
With the departure of retired Justice Anthony Kennedy, abortion rights could hang on Kavanaugh's vote. His critics have warned that with a new ninth justice Kavanaugh, the court would outright reverse the 1973 milestone that made abortion legal nationwide.
If Roe is overturned, abortion law would be set on a state-by-state basis, as President Donald Trump, who nominated Kavanaugh, declares he wants.
In a memo Kavanaugh wrote in 2003 which was made public Thursday, he acknowledged that the Supreme Court "can always overrule" Roe v. Wade.
"I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent," he wrote, adding that some conservative justices then on the court "would do so."
Roe and abortion rights are not an all-or-nothing proposition.
Even as Chief Justice John Roberts and Justice Samuel Alito, for example, have not voted to overturn Roe, they have narrowly interpreted its breadth and declined to strike down tough state restrictions on abortion.
Roberts and Alito were among dissenting justices as the Supreme Court in 2016 -- with Kennedy's crucial vote in the majority -- invalidated Texas regulations on clinics and physicians that performed abortions.
On Wednesday, under questioning from Democrats, Kavanaugh declined invitations to promise he would not vote to reverse Roe, saying it would violate judicial norms to promise a vote on any particular case.
"As a general proposition I understand the importance of the precedent set forth in Roe v. Wade," Kavanaugh said.
But perhaps more revealing, as he expressed regard for Roe and a 1992 decision (Casey v. Planned Parenthood of Southeastern Pennsylvania) that reaffirmed Roe, Kavanaugh elaborated on why he dissented when his US appeals court allowed a 17-year-old woman to end her pregnancy, over objections from the Trump administration.
Kavanaugh had declared that the DC Circuit majority's opinion would lead to a new right for "immediate abortion on demand."
His testimony Wednesday on the case, first in an exchange with Sen. Dick Durbin, offered a window into his thinking. As the Illinois Democrat asserted Kavanaugh would impose a new requirement to a woman's exercise of the abortion right, Kavanaugh emphasized his concern for the young woman who was being held in a US detention center in Texas.
"She's in an immigration facility in the United States. She's from another country. She does not speak English. She's by herself," Kavanaugh said, defending his view in Garza v. Hargan that the Trump administration could require her to find a sponsor before obtaining an abortion. Kavanaugh said the teen could have been able to "consult with" the sponsor as she faced her decision.
The DC Circuit majority found that the Trump administration was imposing an "undue burden" on the woman, violating her constitutional right.
"The government's conduct in the case had already forced her to delay her decision on an abortion by several weeks," Durbin told Kavanaugh.
Kavanaugh responded that he had turned to Supreme Court precedent testing laws that require a teenager to notify or get permission from a parent before obtaining an abortion. In his dissent, Kavanaugh acknowledged that, "Those laws, of course, may have the effect of delaying an abortion."
The DC Circuit majority read Supreme Court precedent differently because the 17-year-old who had crossed the southern border had already fulfilled the requirements of state law for a minor trying to obtain an abortion. A Texas court had determined that she could decide what was in her best interests.
Kavanaugh had written that the administration was not forcing the young woman to obtain consent from a sponsor. "It is merely seeking to place the minor in a better place when deciding whether to have an abortion," he said.
As Durbin noted that other judges read abortion-rights differently, Kavanaugh added, "I did the best to follow precedent ... I did my level best in an emergency posture, I had basically two days to do this case."
In separate questioning on Wednesday, Democratic Sen. Richard Blumenthal noted that Kavanaugh, a 12-year veteran of the DC Circuit, was not on Trump's list of Supreme Court candidates until November 2017, one month after his dissenting opinion in Garza v. Hargan. The Connecticut Democrat said it looked as if Kavanaugh landed on the list because of his view blasting what Kavanaugh described as "abortion on demand."
Kavanaugh rejected that idea. He said he believed Trump added him to the list because "a lot of judges and lawyers I know" urged the consideration "based on my record from the past 12 years."

Will the Supreme Court overturn Roe v. Wade? And if it does, what happens to abortion rights?



Disclosure statement

B. Jessie Hill receives funding from an anonymous foundation that supports research on reproductive health care. She is a volunteer attorney for the ACLU of Ohio and litigates challenges to abortion restrictions.


Case Western Reserve University

Case Western Reserve Universityprovides funding as a founding partner of The Conversation US.

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For people who care about abortion rights, these are worrying times.

Of course, pro-choice advocates began losing sleep the minute Donald Trump was elected. During the 2016 presidential election, Trump claimed that Roe v. Wade – the 1973 landmark decision establishing that women have a constitutional right to access abortion – would be “automatically” overruled by his Supreme Court picks.

Shortly after taking office, Trump announced his first Supreme Court nominee, the conservative Neil Gorsuch, who replaced the conservative Justice Antonin Scalia. Swapping one conservative for another didn’t change much for Roe. But now, a second spot has opened up on the court with the retirement of Justice Anthony Kennedy – who has been a key vote to preserve abortion rights.

From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the future of Roe v. Wade looks more tenuous than it ever has.

A new vacancy, a new court

Replacing Kennedy with a more conservative judge could fundamentally remake constitutional doctrine in this area.

In 1992, Justice Kennedy was a swing vote to preserve Roe v. Wade in a 5-4 decision known as Planned Parenthood v. Casey. More recently, in the 2016 case of Whole Woman’s Health v. Hellerstedt, Justice Kennedy’s vote was critical to the five-justice majority, which again affirmed the right to choose as fundamental.

But Justice Kennedy’s proposed successor Brett Kavanaugh has expressed hostility to Roe. In a public speech last year, Kavanaugh praised the late Chief Justice William Rehnquist’s dissent from the Roe decision. He also voted against an undocumented minor in government custody who wanted an abortion, complaining that the judges who voted in favor of the young woman were granting a right to “abortion on demand” and arguing that the woman should have to delay the procedure for a few weeks until she could be placed with a family. This record suggests Kavanaugh could provide a critical fifth vote to the anti-Roe wing of the court, joining Justices Clarence Thomas, John Roberts, Samuel Alito and Gorsuch.

What happens if Roe is overruled?

If the Supreme Court votes to overrule Roe, it wouldn’t immediately make abortion illegal throughout the country. That would probably require five justices to decide that embryos and fetuses are “persons” entitled to constitutional protection. No justice – not even Scalia – has ever taken such an extreme view.

Instead, the court would probably say that states are allowed to restrict abortion however they see fit. It would say that states can choose to protect potential life, and that the woman’s right to choose whether and when to become a parent is not strong enough to overcome the state’s interest in protecting fetuses.

That means some states would probably outlaw abortion altogether, perhaps with narrow exceptions in cases of rape or incest, or when the woman’s life is in danger. Other states may place few or no restrictions on abortion – perhaps making it illegal only once the fetus is viable, typically after the 22nd week of pregnancy.

The role of Roberts

Of course, it’s possible that Roe will live another day.

With Kennedy gone, Chief Justice John Roberts will be at the ideological center of the Court, with four conservatives – Thomas, Alito, Gorsuch, and Kavanaugh – all to the right of him. Roberts is therefore likely to become the swing vote.

Roberts is a famously careful jurist who often avoids overruling precedent if he can do so by issuing a narrow opinion instead. He is also likely concerned about his legacy. He might not want the Roberts court to be the court that overruled Roe and took away the right to choose. He might be concerned about the backlash among members of the public, who have long assumed that Roe was here to stay and who favor keeping it by more than a two-to-one margin.

Then again, many justices have affirmed their devotion to precedent, only to later overturn it. Both Roberts and Gorsuch spoke favorably about following precedent during their Senate confirmation hearings. Yet both justices voted just this past term to overturn a unanimous Supreme Court case protecting the rights of unions – Abood v. Detroit Board of Education – that had stood undisturbed for more than 40 years.

A challenge in the states

Also, importantly, numerous states stand ready to mount a challenge to Roe. In 2018 alone, seven states have introduced or passed so-called “heartbeat bills” that ban abortion as early as six weeks of pregnancy. But the Supreme Court doesn’t need to consider a challenge to a heartbeat bill in order to overturn Roe.

In fact, the Supreme Court gets to pick and choose the cases it hears and needs only four justices to vote to hear a case. That means it might decide to weigh in on abortion rights as soon as its next term. Almost any case, including several that are already pending, could become a vehicle for overturning Roe.

For example, the newly composed Supreme Court could decide to take up the constitutionality of laws in Ohio or Indiana banning abortions sought for particular reasons, such as fetal anomaly. Both laws have been blocked by federal courts, and either could still be appealed to the Supreme Court. If the court decides to hear one of those cases, it could uphold the laws on the grounds that Roe was incorrect and a new, more relaxed legal standard should apply to abortion restrictions.

What’s more, 10 states including Wisconsin and West Virginia, actually still have pre-Roe abortion bans on the books. These laws weren’t being enforced as long as Roe was the law of the land. If Roe is overturned, it’s possible that prosecutors in those states would try to bring criminal charges against doctors performing abortions, without even waiting for the legislature to pass a new law banning abortion.

Four additional states – North Dakota, South Dakota, Louisiana and Mississippi – have passed so-called “trigger laws” providing that abortion will become illegal the moment Roe is overruled.

Even in the absence of laws such as these, though, many state legislatures won’t hesitate to enact new abortion bans immediately. In fact, the Center for Reproductive Rights considers only 19 states to be relatively low-risk for passing new abortion bans if Roe fell.

Of these 19, a few states are expected to take an active role in protecting abortion access in the absence of Roe. This means that women in Massachusetts continue to have one set of laws, and women in Mississippi will have a very different set.

Still, it’s important not to lose sight of the bigger picture. Whether or not Roe goes, the Supreme Court is likely to shift far to the right on reproductive rights — potentially affecting not just abortion, but access to contraception as well. One sign of this shift is Kavanaugh’s record of siding with employers seeking to block employees’ access to birth controlunder the ACA.

And, even if Roe isn’t overturned, it may continue to exist in name only, as the Supreme Court is likely to uphold every sort of restriction short of an outright abortion ban.

In short, there are many possible paths for Roe v. Wade in the future, and significant questions remain. One thing is almost certain, though – the court will continue to erode the power of Roe.

This story has been updated from a version that originally ran on March 19, 2017.

DMU Timestamp: September 17, 2018 17:21

Added November 12, 2018 at 4:22pm by Oakley Hill
Title: Annotations #2

Who was Norma McCorvey?
Norma McCorvey is the real name of the woman known as “Jane Roe” in the landmark US supreme court case on abortion rights, Roe v Wade. The 1973 case established a right for US women to have abortions. McCorvey became the plaintiff after she met with two lawyers looking for a test case to challenge Texas’s abortion ban. That was in 1970. At the time, McCorvey was pregnant, unwed, unemployed and unable to obtain an abortion legally or otherwise.

McCorvey never had an abortion. Her case, which proceeded largely without her involvement, took too long to resolve, and she gave birth to a child that she placed for adoption. Several years after the ruling, she publicly revealed her identity and became involved in the pro-abortion rights movement. But after a conversion to Christianity, she became an anti-abortion rights activist. Before she died last week, McCorvey had said that it was her wish to see Roe v Wade overturned in her lifetime.

Is Roe v Wade actually in danger?
It depends on what you mean. Many legal experts are sceptical that the US supreme court would overturn it any time soon. For starters, it’s difficult to bring a case before the supreme court that would threaten the ruling, because those cases almost always founder in a lower court. And even if Donald Trump’s supreme court nominee opposes abortion rights, the current makeup of the court is such that there aren’t enough votes to overturn Roe.

An alternative strategy is to poke so many holes in Roe that its protections for abortion rights become weakened. At this, anti-abortion activists have been very successful. Since Roe, some states have enacted laws requiring women seeking an abortion to attend anti-abortion counselling or to wait 24 hours or more for the procedure, laws extensively regulating abortion after 20 weeks, and laws blocking public funding for abortion. And they have picked up speed in recent years. Since 2010, lawmakers have placed 338 new restrictions on abortion.

Will states continue to pass new anti-abortion laws?
Many states are controlled by Republicans who oppose abortion rights, so they will certainly try. You might have heard about a proposal in the state of Oklahoma calling for women to require permission for an abortion from the man who impregnated her. One legislator justified the bill by saying pregnant women’s bodies are not their own because they’re “hosts”. It’s outrageous, but not a huge threat to abortion rights – the jurisprudence is pretty clear that you can’t require an adult woman to get permission before having an abortion.

What does threaten abortion rights are laws that chip away at Roe v Wade. Several states are attempting to ban a common method of second-trimester abortion on the basis that it’s cruel to the foetus. There are efforts to regulate how abortion clinics dispose of medical waste, which the clinics say are just attempts to shut them down with unnecessary rules and expenses. There is also a push to give women scientifically untrue information that it is possible to “reverse” an abortion performed with medication.

Have all these laws really made it harder to get an abortion?
It’s hard to say. There is evidence that shutting down clinics can cause a drop in the abortion rate. In Texas, after a 2013 clinic regulation forced about 20 clinics to close, there was a 50% drop in abortions in areas where the distance to the nearest clinics suddenly increased by more than 100 miles. Last June, the US supreme court ruled that the regulation had no medical justification and was unconstitutional. But in many places, the damage had already been done.

Making it harder for women to pay for abortions also seems to have an impact. Since 1976, when Congress blocked Medicaid – insurance for those on low-income – from paying for abortions, more than a million women have been blocked from access. A new tactic is to try to ban abortion coverage in state insurance marketplaces. Congress is exploring ways to replicate those restrictions nationally.

Then there are laws that place extra restrictions on abortion – a waiting period, or a counselling requirement, or a ban on abortion after a certain number of weeks. The research isn’t definitive, but people who study abortion restrictions are pretty sure that these kinds of laws don’t prevent women from having abortions – they just make it more time-consuming and expensive. The exception may be bans on abortion after a certain week of pregnancy, which studies show can force women to carry a pregnancy to term.

What could change under Trump?
Republicans in Congress have plans to pass a national ban on abortion after 20 weeks, to make it harder for a future Congress to restore public funding for abortion, and to curtail insurance coverage for abortion. It’s not clear if they will overcome opposition in the Senate, where Democrats retain enough votes to filibuster legislation.

But many public health advocates fear that the Trump administration will scale back the availability of contraception – which seems to have helped bring the US abortion rate to historic lows. Obamacare requires insurance companies to cover contraception with no copay, and the share of privately insured women who were able to obtain contraception at no extra cost quadrupled. Trump and Congress intend to repeal Obamacare – and so far, none of the replacement models have the same coverage requirements. At the same time, Republicans are attempting to strip public funding from Planned Parenthood, a move that health experts warn could blow a hole in the family-planning public safety net.

DMU Timestamp: November 09, 2018 23:10