Roe v. Wade is Dead: The Troubling Rise of Conservatism in the American Judiciary & the Future for Women

Jake McPhail ’24

Contributing Writer

The recent appointments of Supreme Court Justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch have created a paradigm-shifting ideological change that has teed up nearly a century of decision-making that will strip the rights of American women, minorities, and the working class.

I say this not from a radical perspective or as someone who is generally displeased to see conservatives in positions of power (although I am), but as someone who recognizes that the judiciary, already poised to defend state and elite interests over that of the plurality of Americans, just got more ammunition.

One of the most renowned examples of the Supreme Court fulfilling its duty to the people was when they granted the right for a woman to get an abortion in the decision of Roe v. Wade (1973). The decision was overwhelmingly bipartisan, a 7-2 vote and the majority opinion being written by lifelong Republican Justice Blackmun. Because the case surrounded a fundamental right, the court applied the strict scrutiny test—the highest standard of review in American law. From this scrutinization, the court established a trimester framework where they found no reasonable state interest of interference with abortion procedures within the first trimester, reasonable state interest of interference in the interest of the woman’s health in the second trimester, but, in the third trimester, the state could “regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.”

However, despite initial bipartisan support, it quickly became a political tool used by conservatives to mobilize the religious right. With every passing decade, the issue became more and more partisan and sorted along the lines that we are familiar with today: Democrats being pro-choice and Republicans being pro-life.

The conservative legal apparatus did not take long to react to Roe, announcing the 5-4 Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) decision less than twenty years later, essentially gutting Roe but leaving the hollowed-out essential holding of the right to an abortion. The Pennsylvania law being challenged required that those receiving abortions gave informed consent, waited 24 hours prior to the procedure, obtained the consent of a guardian if under the age of 18, and provided evidence of their husband’s notification of the procedure if the woman was married.

The Supreme Court upheld all the aspects of the law, save the spousal notification provision. This meant that the trimester system established by the strict scrutiny standard in Roe was completely overturned. The court then established the undue burden standard: after the point of fetal viability, the state could not put an “undue burden” on a woman’s right to get an abortion. Reading this you may be wondering: “So, what is an undue burden?” In short, no one really knows, but there is a point to the Court’s use of ambiguous language. If the standing is unclear, then states can pass more and more restrictive abortion laws, leaving it to the lower courts’ discretion to decide which is and is not an “undue burden,” rather than any legal principle.

In the decades following the decision, dozens of state legislatures across the country pounced on the golden opportunity to strip a woman of her right to abortion. In light of the recent appointments made by Donald Trump, states were emboldened to test just how far they could stretch the undue burden standard. In 2021, Texas passed The Texas Heartbeat Act, which bans abortions after cardiac activity is detected in a fetus, approximately at six weeks of gestation, with no exception for either rape or incest.

Note that cardiac activity at six weeks does not mean a heartbeat in the way we know it; it only means that the pre-formed heart tissue is putting out electric signals. The “heartbeat” we hear is actually generated by the ultrasound machine.

Not only does this law restrict abortion prior to fetal viability (approximately 24 weeks), it is designed to evade federal oversight as the law deputizes ordinary citizens by rewarding them at least $10,000 plus attorney’s fees for successfully suing those abetting women getting abortions. In theory, the state of Texas is not enforcing the Supreme Court’s holding and any lawsuit against them would be null.

This led to Whole Woman’s Health v. Jackson (2021), brought by abortion providers across the state (including Whole Women’s Health) suing for a preliminary injunction. Yet, the Supreme Court upheld the law in an unsigned, 500-word, 5-4 decision, acquiescing to Texas’s legal craftsmanship.

Currently, women in Texas no longer have access to an abortion, a right guaranteed by Roe and Casey. Roe v. Wade is dead in Texas and is now at risk nationwide.