The Platform

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Depending on how the U.S. Supreme Court rules, the United States could return to a pre-Roe v. Wade landscape.

Nearly half a century ago, pro-choice advocates around the country celebrated their victory in a decades-long fight: abortion had finally been legalized. In 1973, the U.S. Supreme Court ruled in a shocking 7-2 decision that a woman’s right to abortion is constitutionally protected. More specifically, Roe v. Wade established that under the Fourteenth Amendment and precedents set by preceding cases, abortions were legal based on the ‘right to privacy.’ Over the years, this ruling has been challenged subtly, with one method being to shut down various abortion providers. Lately, however, restrictions on abortion have only multiplied, with some states even going so far as to fully outlaw the procedure.

In the past, many states have used TRAP laws to circumvent the decision established in Roe v. Wade. A TRAP law aims to shut down abortion providers in order to make them less accessible for people seeking to end their pregnancies. These laws force abortion clinics to abide by hospital-grade building regulations and offer admitting privileges to nearby hospitals, both of which are extremely costly for providers. Recently, state legislatures graduated from this approach, instead, focusing on targeting abortion directly with the most restrictive laws being enacted in states such as Texas, Idaho, and Oklahoma.

Texas passed its most stringent abortion law last year, prompting several states to follow suit. The proposed law bans virtually all abortions after the 6-week mark (or the detection of a fetal heartbeat) and allows anyone in the United States to sue abortion providers and those who aid in the procedure for up to $10,000 dollars at a time. Consequently, even the staff of a clinic that offers abortions or a family member who drives a patient to their appointment could face the risk of being targeted by a multitude of lawsuits.

What makes the “heartbeat law” even harsher is that it makes no exceptions for victims of incest or sexual assault. According to experts, the 6-week threshold represents a point before most women are aware of their pregnancies, and before 85 to 90% of abortions are carried out. With abortion after embryonic cardiac activity being outlawed in every circumstance, many women are forced to carry the fetus to term unwillingly.

On March 14, the Idaho House of Representatives followed the standard set by Texas and approved a bill banning abortion after 6 weeks. Under SB 1309, the immediate family of anyone who received the procedure would be able to bring legal action against the physician that administered the abortion. Idaho is slightly less restrictive than Texas, however, in that exceptions have been made for pregnancies that resulted from rape, incest, or in the case of a medical emergency.

While Idaho’s Supreme Court has temporarily blocked the ban, proponents and opponents alike will not know the future of the law until arguments from Planned Parenthood are heard by the court.

Perhaps most egregious of all is the bill signed into law by Oklahoma’s Republican Governor Kevin Stitt on April 12. Under the name Senate Bill 612, this piece of legislation forbids any abortion in the state unless the mother’s life is in immediate danger, leaving absolutely no exception for pregnancies caused by assault or incest, and makes no attempt to provide any possible time frame for those seeking abortions.

The law, which passed both the Oklahoma Senate and House of Representatives last month, makes performing or attempting to perform an abortion a felony, and those found guilty may be punished by a fine of up to $100,000 and/or a maximum sentence of 10 years in state prison.

When asked about the law’s effect on victims of sexual assault, Republican State Representative Jim Olsen, the principal author of SB 612, said that although “rape and incest is a horrible crime,” the baby “still has a right to life” and “should not be liable for the sins of the father.”

How is this constitutional? Well, it is, and it isn’t. Roe v. Wade marked the start of the three-trimester rule, where a state can increasingly become more restrictive as the pregnancy progresses. For example, the first trimester can have absolutely no government infringement on abortion, the second may have limited intervention, and the third may be banned in its entirety. Yet, states like Texas, Idaho, and Oklahoma have either banned abortions completely or at just 6 weeks, well before the end of the first trimester. This is possible due to loopholes they have discovered within the ruling established by the Supreme Court almost 50 years ago.

The Court decided its case on the basis of government intervention. However, the laws put forth by Texas and Idaho are not actively being enforced by the government. Instead, private citizens may bring legal action against those who perform and/or aid and abet in an abortion. This method of avoiding judicial backlash has frustrated many opponents of the law since it makes it significantly harder to sue state governments if the governments are not the ones prosecuting providers.

With so many states challenging Roe v. Wade and some even blatantly disregarding it, the status of the Supreme Court and the precedents that it has set are inherently being undermined before our very own eyes. This begs the question: if we allow this behavior to persist, what does it mean for the future of abortion, and more importantly, our judiciary’s ability to interpret and influence federal law?

Penelope Shvarts is passionate about both government and public policy, and as a content producer at the Foreign Policy Youth Collaborative (FPYC), she aims to use her voice to spark productive discourse regarding current issues and events. Prior to joining the content team at FPYC, Penelope mainly focused on advancing her skills in music. Starting at the age of five, she has played both Classical and Flamenco guitar for close to 12 years. She had the opportunity to play at several prestigious halls as a young child, including Carnegie Hall and Lincoln Center, both as a soloist and ensemble player. While continuing her studies in music, Penelope is now an active member of several organizations, including Strings4Smiles, Notelove, and Midori and Friends as a NextGen Musician.