I have said before that abortion will probably be ruled unconstitutional by the Supreme Court. What would this mean? I presume the Supreme Court would rule that the right to privacy as embedded in the due process clause of the 14th Amendment would be considered null and void. The due process clause states that “nor shall any state deny any person life, liberty or property without due process of law.”
In Roe (1973) the court held that the right of a woman to determine whether motherhood should be an option or not was her decision to make–not under all circumstances based on term of pregnancy–but certainly not the sperm donor’s. A Roberts court will probably engage in judical activism-supposedly loathed by movement conservatives-and find that Roe was improperly decided.
Conservatives seem to support selectively stare decisis: a Latin phrase which literally means let the decision stand. Operationally, it means the Supreme Court adheres to earlier decisions. It does not reinvent the wheel or legislate from the bench. It follows its own decisions regardless of the composition of the court or the time of the case. Notable exceptions to this was the Brown v Topeka Board of Education(1954) decision that reversed the Plessy v. Ferguson decision of 1896. The latter held that separate but equal Jim Crow was permissible. Brown said it was not and that de jure segregation of public schools was inherently unequal.
Also in Lawrence v. Texas the court reversed Bowers v Hardwick and made it more difficult to criminalise sodomy or frankly in this case homosexual relations. So the court in my estimation has abandoned stare decisis appropriately. Yet if Roe v Wade were overturned and in essence the court abandoned an earlier decision, this would set the table for the criminalisation of abortion.
As I understand it, the Court will rule that there is no constitutional right to privacy as it pertains to abortion. It would not rule that all abortions are illegal. The result would be that individual states would determine whether the procedure satisfies STATE LAWS. So some states would prohibit or severely restrict the right to choose; some states would allow it. Poor women who desired an abortion would be forced to have unwanted children or would find some means, probably dangerous if not life threatening, to end a pregnancy. Middle class or more affluent pregnant women desiring to terminate their pregnancy would drive or get on a plane and go to a blue state that allows abortion. So abortion rights would be ended for some, permitted for others. Some states would allow abortions but those most vulnerable and least capable of taking care of their children, who lived in a state that banned abortion, would have no choice. Affluent women would have choice.
I live in Illinois and it is possible that abortion would be criminalised in this state. I don’t know. I do know that not since Vietnam would the nation be so divided and aroused politically as a thirty-seven year old right, a capstone of the women’s movement, would be severely jeopardised if not destroyed.