Since the Roe v. Wade decision in 1973, the Supreme Court has upheld a number of restrictions on abortion that many believe constitutes a “chipping away” of the right to choose and may lead to it being eventually overturned in years to come.
“Court rulings since Roe have never outright reversed the decision and the right to privacy,” University of Wisconsin political science professor Howard Schweber said. “But they have given the states and the federal government more authority to regulate that choice.”
In the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, the Court changed the notion of a right to privacy concerning abortion by altering it from a fundamental right to privacy to an intermediate right that states can regulate.
“As far as abortion is a right to privacy, that right to privacy has changed from something as fundamental to something that is not,” Schweber said.
The most serious setback for pro-choice proponents was the recent passage of a federal “partial-birth abortion” ban in 2003. Although the Supreme Court struck down 5-4 a Nebraska ban on “partial-birth abortions,” President Bush signed a national ban on the practice into law late last year. Congress bypassed the Court’s ruling by arguing that a partial-birth abortion is never needed to save the mother’s life, the major qualm the Court had with the original Nebraska law.
The Supreme Court has given state legislatures the discretion to pass a variety of bills placing limitations on abortions rights. Over 300 state laws have been passed in the past six years enacting criminal abortion restrictions, according to the Center for Reproductive Rights.
The Wisconsin legislature recently passed a bill defining a “live birth” and giving it the same legal status as a human being who is born alive. Schweber speculated that the new definition is a way around explicitly enacting a state partial-birth abortion ban, but enacting it in fact by giving a fetus full personhood.
The split among the justices over the issue of abortion that often leads to close 5-4 decisions could mean the Court is close to overturning Roe v. Wade if a justice dies or retires during President Bush’s tenure in office.
“President Bush is not in favor of Roe v. Wade and he tends to appoint very conservative justices, so there is a good chance he would appoint someone who would overturn Roe v. Wade,” University of Wisconsin political science professor Virginia Sapiro said.
However, some hold that the Court will likely not explicitly outlaw abortions in the coming years but rather will continue to allow further regulations of the practice.
“The Court has moved on privacy issues that makes it more likely than in recent years that Roe will not be overturned outright,” Schweber said, hypothesizing the Court will continue to tamper with the notion of privacy as it relates to abortion without explicitly challenging the right to choose. “The big change will be one of degree.
