The Future of Roe v. Wade
Loyola University Chicago School of Law, JD 2020
Roe v. Wade has been a controversial Supreme Court decision ever since it was decided in 1973. Critics have tried to overturn it multiple times over the years. Some states have attempted to circumvent the ruling and implement their own abortion laws, while other states have implemented laws to solidify it in the event the decision is overturned. On the 46th anniversary of the opinion, New York passed a new abortion law called the Reproductive Health Act, which has caused an uproar across the country. In addition, this month the Supreme Court ruled to stay on a Louisiana Targeted Regulation of Abortion Providers (“TRAP”) law. The question becomes how will states comply with the ruling of Roe v. Wade when its future seems unknown.
What is the RHA?
On January 22, 2019, New York passed the Reproductive Health Act (RHA), which expands on when a woman can obtain an abortion.
The law would permit abortion without restrictions during the first two trimesters of pregnancy. Abortion would also be legal in the third trimester, up until the moment of birth, in an “absence of fetal vitality” or if the woman’s “life or health” is determined to be at risk.
There is no “objective medical standard” a woman has to meet in her third trimester of pregnancy in order to obtain an abortion; the decision would be made at the doctor’s discretion.
New York also expanded who, besides physicians, can perform an abortion by including nurses and physician assistants as authorized under the statute.
The RHA and Roe v. Wade
A major criticism of the law is the expansion of who can perform an abortion under the RHA. In Roe v. Wade, the Supreme Court authorized physicians to perform abortions. This brings forward the argument of whether the Supreme Court would find the RHA to be violating Roe v. Wade.
Roe v. Wade also held that states could restrict or ban abortions after fetal viability in some circumstances. The RHA once again elaborates on this and allows abortion up to the moment of birth in an “absence of fetal vitality”.
Under the RHA, the doctor has total discretion for third trimester abortions, as there is no “objective medical standard” that a pregnant woman must meet.
However, proponents of the law argue that it is solidifying the intent of Roe v. Wade in an era where the Supreme Court might overturn the ruling. Since the new law removes abortion from the criminal code and instead places it within public health law, this allows the law to be updated and reworked for the 21st century.
In January 2019, Virginia’s legislature introduced a similar law to New York’s RHA. If enacted, the law would allow abortion providers to determine whether the pregnant woman’s physical or mental health demands a late-term abortion. For third trimester abortions, the law would require the pregnant woman’s physician and two consulting independent physicians to certify that in their opinion, continuing the pregnancy “is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman”.
The law has been tabled, and most believe it will not pass due to a slight Republican majority in the House and Senate.
Louisiana’s TRAP Challenge
In 2014, Louisiana passed a Targeted Regulation of Abortion Providers (“TRAP”) law which requires that when a physician performs an abortion, they must have admitting privileges at a hospital within 30 miles of the abortion facility. Those who opposed the TRAP law argued that this is an unnecessary step for providing safe medical care, and it was placing an undue burden on abortion facilities that could not meet this requirement.
June Medical Services, LLC v. Gee was brought before the Supreme Court, arguing that the Louisiana TRAP law was unconstitutional. In 2016, Texas had a similar TRAP law that was brought before the Supreme Court. The Court found the law to be unconstitutional. However, this was prior to both Justice Gorsuch and Justice Kavanaugh’s admission to the Court. Some are concerned that this will create a conservative block that will succeed in striking down the ruling.
In a 5-4 ruling, the Court held to temporarily stay the Louisiana law. While many proponents of abortion rights were relieved, this ruling does not mean that there will no longer be conflict in the future. It is merely a “pause”.
The Court’s ruling, while slightly positive for abortion rights advocates, also brought a sense of dread. Justice Kavanaugh appears to wish to overturn Roe v. Wade, as evident by the dissent he wrote in the ruling.
What Will Happen with Roe v. Wade?
Roe v. Wade has been a seminal case for almost 50 years. With the new conservative block on the Court, there are some who believe that this could still mean a wave of new anti-abortion laws.
However, with the recent ruling of June Medical Services, LLC v. Gee, states still need to comply with Roe v. Wade. Despite certain states’ attempts to circumvent the laws, the ruling is still in place and the Court does not appear to be taking it down.