The Overturning Of Roe v. Wade Would Not Make Abortion Illegal

May 03, 2022

Before we get into the meat of this issue it is important to understand that a draft opinion is not a ruling. It is a precursor to a ruling; a moment in time when the US Supreme Court Justices make their cases to the other justices on why they hold the preliminary decisions they do. Roe v. Wade has not, as of yet, been overturned.

That said, the chances are significant that the long-standing privacy decision that protected abortion access will be overturned (according to the now verified draft opinion and the direction in which it points) and that the right to determine the legality of and the restrictions – if any – applied to abortions would return to the individual states.

The Indicators In The Leak

In what was supposed to be a privately-held internal draft opinion penned by Supreme Court Justice Samuel Alito, it is preliminarily inferred that the US Supreme Court (SCOTUS) is leaning toward striking down Roe as an overreach of the federal government’s authority under the US Constitution. The decision would remand the regulation of abortion to the states, not make the procedure illegal.

In the draft opinion, Justice Alito writes for the majority:

“Roe was egregiously wrong from the start...We hold that Roe and Casey must be overruled...It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortions should be allowed under some but not all circumstances and those within this group hold a variety of views about the particular restrictions that should be imposed.”

The SCOTUS has confirmed the authenticity of the document but protested that the leak constitutes an unprecedented breach of protocol and will be investigated.

Roe v. Wade (1973) did not “legalize” abortion. Nor did the ensuing Planned Parenthood v. Casey (1992) ruling.

The Facts On Roe v. Wade

In the Roe ruling, the SCOTUS held that a woman’s access to an abortion fell within the right to privacy protected by the Fourteenth Amendment. In that ruling the SCOTUS stated:

“The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.”

This decision relegated abortion to a matter left to the states with stipulations:

First Trimester: It is a medical procedure and a matter exclusive to the doctor-patient relationship
Second Trimester: State may impose regulations on abortion that are reasonably related to maternal health
Third Trimester: After the point of fetal “viability,” a state may regulate abortions or prohibit them entirely, with exceptions to save the life or health of the mother

The case of Planned Parenthood v. Casey (1992) reaffirmed Roe, and further prohibited states from imposing an “undue burden” on a woman seeking an abortion.

In this decision, “undue burden is defined as, “...[A] substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision specifically excluded in the matter of “undue burden” was the husband notification requirement.

In the end, should the SCOTUS overturn Roe, the total effect of that move is to cede authority – to return authority – over the matter to the states. Does anyone who has two brain cells believe that California, Illinois, New York, Washington, Oregon, and a variety of other states are going to place a prohibition on abortion? Even states like Texas, Alabama, and Florida have struck reasonable ground in weighing access to abortions for all.

Oppostunistic Politicians Continute To Divide Us

This makes comments made by US Senate Majority Leader Chuck Schumer (D-NY), and House Speaker Nancy Pelosi (D-CA) on the matter of the draft opinion transparently political, opportunistic, and manipulative, even as it showcases their complete constitutional illiteracy.

In a joint statement, the congressional leaders said:

“Several conservative Justices, who are in no way accountable to the people, have lied to the Senate, ripped up the Constitution, and defiled precedent and the Court’s reputation – all at the expense of women who could soon be stripped of bodily autonomy and constitutional rights.”

No constitutional rights are being stripped. No one’s anatomy is being compromised. And abortion is not being outlawed. Everyone, everywhere, should be outraged and full-throatily vocal in their condemnation of the politicizing of this issue. It is purposefully dishonest to the core and serves the purpose of fomenting chaos and violence in our urban areas again this summer.

The American people should use this moment in time as a litmus test of honesty in the political and media spheres. Those claiming, as Schumer and Pelosi are, that rights are being violated and abortion is being outlawed cannot be trusted to tell the truth. They should be sidelines from influence and government.

It’s Really About State Rights & The US Constitution

The fact of the matter is this. The SCOTUS decision to overturn Roe – should that be the case – is a decision centered on the Tenth Amendment, relegating anything not specifically enumerated to the federal government in the Constitution to the individual states.

The Tenth Amendment states clearly:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Additionally, the intent of the Framers is made conclusively in Federalist 45, where James Madison wrote:

“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

We have been conditioned to believe – and both political parties are guilty of engaging in this deception – that the federal government has purview into every aspect of our daily lives. Under the US Constitution, it does not. It wasn’t until the egregious SCOTUS decision in Wickard v. Filburn that the “Commerce Clause” was redefined to open the door for federal intercedence into anything they chose to involve themselves in.

Perhaps, given the SCOTUS’s move to revisit Roe, they might do something that would help to save the Republic from the greedy talons of the global elitists who seek to end the Great American Experiment; placing our nation’s people under the rule of totalitarian global governance.

Perhaps – just perhaps, they will revisit the Wickard v. Filburn decision and return our federal government to its limited purview as constitutionally mandated. Then, I never thought I would see the day that the SCOTUS would rule to reduce the power of our federal government, so...

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