Impact of Trump’s SCOTUS Pick for North Carolinians: Roe v Wade

Impact of Trump’s SCOTUS Pick for North Carolinians: Roe v Wade

Earlier this week, the United States Senate confirmed Amy Coney Barrett as the 115th Supreme Court justice in U.S. history. Undoubtedly, folks are wondering what the impact of President Donald Trump’s pick means for them, including North Carolinians. And one of the most prominent issues people worry about focuses on a 47-year-old SCOTUS decision: Roe v Wade.

For some, the confirmation of Justice Barrett foreshadows the end of abortions in America. For others, it cements fears that government officials will be with them —maybe literally, maybe figuratively — in the doctor’s office. Many of these hopes and fears center on the possibility of completely overturning Roe v Wade.

While some lawmakers, primarily self-claimed “moderates,” claim that the likelihood of SCOTUS backtracking from this longstanding precedent is debatable, others fear it is only a matter of time. Regardless of your perspective, however, it is crucial that North Carolinians understand what overturning Roe v Wade would mean.

This starts with a basic understanding of what Roe v Wade is — and what it isn’t.

What Roe v Wade Is and Isn’t

In the late 19th and early 20th centuries, states across the country started criminalizing abortion. This movement wasn’t the result of longstanding religious views or even the common law. Rather, it was seemingly a development that followed English statutory law during the 18th and 19th centuries.

Even by the middle of the 19th century, only a handful of U.S. states had abortion laws. Like most things in American history, however, abortion laws changed dramatically after the Civil War.

The Supreme Court explained the change in Roe v Wade in 1973: “It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”

But states quickly and dramatically departed from that historical perspective. Texas was one of those states and is the state where Roe v Wade originated. Texas’s abortion law criminalized almost all abortions. The only exception applied to abortions as a result of the “medical advice for the purpose of saving the life of the mother.”

In Roe v Wade, the Supreme Court began by recognizing that the U.S. Constitution has long guaranteed individuals a right of personal privacy. Indeed, according to the Court, the right to privacy is both “fundamental” and “implicit in the concept of ordered liberty.” It is that privacy right that guided the Supreme Court’s decision.

Under Roe v Wade, the right to privacy extends to a woman’s decision to terminate her pregnancy.

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the Court wrote.

Roe v Wade is hanging in the balance.
Image courtesy of Claire Anderson on Unsplash.

Nevertheless, the Supreme Court also made it clear “that this right is not unqualified and must be considered against important state interests in regulation.” Therefore, the Court ruled, governments can start regulating “at approximately the end of the first trimester.”

In his dissent, then-Justice William Rehnquist took issue with the notion that “the performance of a medical abortion by a licensed physician on a” woman implicated a “privacy” right. In his view, the “transaction” (as any other medical procedure, in his view) was fully welcome to legislative regulation.

This background on Roe v Wade — one that focuses on privacy rights — helps clarify what overturning the decision could mean.

What Overturning the 1973 Decision Could Mean for NC

According to the Center for Disease Control’s “Abortion Surveillance System,” there were more than 600,000 abortions performed in 2016, the year before President Trump took office. Throughout his campaign, President Trump committed to scaling back the privacy right involved when it comes to abortion. Yet, the following year, according to the Guttmacher Institute, more than 200,000 more — a total of 862,320 — abortions were performed.

Just under 30,000 of those 2017 abortions occurred in North Carolina. Many have long believed that a SCOTUS makeup like that of NC’s court — one where two-thirds of the Court consists of Republican-aligned judges — will drop that 30,000 figure to zero.

That, of course, will not be the case. But that doesn’t mean that a woman’s privacy rights when it comes to pregnancy-related medical appointments won’t look different either. The overturning of Roe v Wade will significantly broaden the ability for governmental regulation when it comes to your right to privacy, including to the extent that right extends to a portion of your pregnancy.

SCOTUS could overturn Roe v Wade.
Image courtesy of Jackie Hope on Unsplash.

NC Already Imposes Several Abortion Restrictions, But More Restrictions Don’t Guarantee Less Abortions

Common examples of such regulation include mandatory ultrasounds, multi-day waiting periods and required counseling. There are a variety of less common examples that are likely on the table as well.

In Indiana, for example, lawmakers passed a bill several years ago that made it a criminal offense to dispose of fetal remains in a manner other than burial or cremation. This means that, in all pregnancies that don’t result in birth — abortions as well as miscarriages and stillbirths — the fetus will be taken to a funeral home and buried or cremated.

Indiana is not alone in this regard. Arkansas and Georgia have similar requirements, and Ohio, South Carolina and Mississippi have considered them as well. Other states like South Dakota have also addressed what happens to fetuses, criminalizing the use of aborted fetal tissue in research.

North Carolina has its own fair share of abortion restrictions, too. NC law requires that minors obtain parental consent before getting an abortion. Legislation also mandates state-directed counseling that discourages abortions, requires an ultrasound and physician-led discussion of the images and imposes multi-day waiting periods. Lawmakers have also proposed bills prohibiting abortions after 13 weeks.

All of these restrictions — and likely more — are certainly on the table in the event that the new SCOTUS overturns Roe v Wade. Yet, according to the World Health Organization, restrictions like these examples don’t decrease the number of abortions that take place. Instead, the WHO reports, abortion restrictions simply make access to safe abortions a privilege of wealth more than anything else.

Image courtesy of Bill Mason on Unsplash.

Roe v Wade’s Fate May be Uncertain Right Now, But Not For Long

For now, it’s impossible to predict the future of Roe v Wade. Some lawmakers have latched onto that uncertainty. But, between the election-eve push for Justice Barrett’s confirmation, Justice Kavanaugh’s praise of the former Justice Rehnquist as a “judicial hero” and other suggestive signs, government regulation on pregnancy feels inevitable.

In fact, Roe v Wade’s fate may be in jeopardy even before its 48th anniversary in January. On the very night of Justice Barrett’s confirmation, SCOTUS agreed to consider Mississippi’s petition in a case addressing this issue. In that request, the state asks SCOTUS to consider a case involving a challenge to its 15-week abortion ban.

Interested in learning more about how the new SCOTUS, Roe v Wade and abortion restrictions impact the Tar Heel State? Stay tuned to our Law and Health sections!

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