A leaked draft opinion on May 2 overturning the landmark abortion decision in Roe vs. Wade set off a firestorm of rage directed at the conservative Supreme Court justices. Protesters surrounded the Supreme Court building and marched on the homes of Chief Justice John Roberts and Justices Brett Kavanaugh and Samuel Alito. The draft opinion, written by Alito in the Dobbs vs. Jackson Women’s Health Organization case, rejected the court’s abortion jurisprudence in both Roe and in the Planned Parenthood vs. Casey decision. “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,” Alito writes in a document marked as “Opinion of the Court.” In 1973, the court held in Roe “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” Roe did not legalize all abortions. It invented a trimester system of state authority with little authority in the first trimester, but considerable authority — including possible bans — in the third trimester when a baby is viable outside the womb. In 1992, a divided court in the Casey case upheld the “essential holding” of Roe, but dispensed with the trimester approach in favor of the current “viability” standard. Under this approach, a state could protect the “potentiality of human life” through legislation once a fetus reached “viability,” around 24 weeks. In the Dobbs case, a Mississippi law prohibits abortion after 15 weeks of pregnancy, several weeks before “viability,” thereby conflicting with both the Roe and Casey cases. The Roe decision was always controversial among constitutional law experts. It was based on a court created “right to privacy,” a right not enumerated in the Constitution. Even the late Justice Ruth Bader Ginsburg, a liberal icon, was a Roe critic. Ginsburg supported the holding recognizing abortion rights but not the “right to privacy” constitutional basis. If the court overturns Roe, abortion will not be barred across America. Some states may ban it, but other states, like California and New York, will allow abortion on demand right up to the last day of pregnancy. In 1990, Nevada voters approved Question 7 that gave state constitutional protection to Nevada law (NRS 442.250) making abortion legal within 24 weeks. It passed with 63.5% of the vote and the Nevada Legislature may not alter the law, unless it’s first repealed by state voters. Polls consistently show voters support legal abortion. A recent Fox News poll found nearly two-thirds (63%) want Roe kept in place. Only 27% of voters favor overturning Roe. While there are partisan differences, Democrats (by 61 points), independents (41 points) and Republicans (13 points), agree Roe should stand. But unlimited abortion is not a popular position. The same Fox Poll found banning abortion after 15 weeks (the Mississippi provision) was favored by 54% of voters, with 41% opposed. Nevada Republican Senate frontrunner Adam Laxalt praised the potential Supreme Court decision as a “historic victory for the sanctity of life.” But he also said abortion is “settled law” in Nevada. Republican gubernatorial frontrunner Joe Lombardo agreed. “Abortion policy is already addressed in Nevada law,” he said. “The governor and legislature cannot make changes to it.” Democratic Sen. Catherine Cortez Masto on May 11 voted for the “Women’s Health Protection Act.” This radical abortion bill would legalize all abortions at any time for any reason — up to the moment of birth. Advertised as “codifying Roe,” this extreme measure was opposed by pro-choice GOP Sens. Susan Collins and Lisa Murkowski, and Democrat Sen. Joe Manchin. It failed 51-49. Democratic Gov. Steve Sisolak has also weighed in pledging “to do everything in my power to protect a woman’s right to choose.” Email Jim Hartman at lawdocman1@aol.com
