Roe v. Wade, the landmark 1973 Supreme Court decision legalized abortion in all 50 states as a constitutional expression of the personal right to privacy The decision has been controversial from the start. Specifically, Roe established that a woman had a fundamental right to an abortion and that state regulations of abortion had to be subjected to strict scrutiny and could be justified only by compelling state interests. Former Justice Sandra Day O’Connor famously stated in her dissenting opinion, that the Roe framework “…is clearly on a collision course with itself…As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” The Court in Roe did not decide when human life began, instead it focused on the legal question on when fetal life could be sustained outside the womb. Since Roe was decided states no longer have to pass the strict scrutiny test but the easier standard called the “undue burden” test. Using the latter, states have imposed restrictions such as a 24-hour waiting period for an abortion; parental consent before a minor can obtain an abortion; and, requiring informed consent as a means to provide women are with available alternatives to abortion. Just recently, the Supreme Court refused to block a Texas law prohibiting more abortions brought to the Court on an emergency application. The Texas law is said to be the most restrictive abortion measure in the nation, prohibiting abortions as early as six weeks and allowing private citizens to sue abortion providers and others. The Bill which was signed by Governor Abbot of Texas and took effect in September 2021, bans abortions after an ultrasound can detect a fetal “heartbeat,” which can be as early as six weeks into pregnancy. In refusing to block the law from taking effect, the Supreme Court stated that it was not ruling on the constitutionality of the Texas law but rather that the emergency application did not on its face present “complex and novel” procedural questions. The Court is presently set to hear a case concerning a Mississippi law that would ban most abortions after 15 weeks, and which impose new limits on abortion rights.
For this assignment, discuss the following:
1. What did Sandra Day O’Connor mean by her statement that Roe is “clearly on a collision course with itself?”
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2. How is the Texas Law different from other abortion bans and what is the impact of this difference?
3. Given the Supreme Court’s present composition what is your opinion on whether abortion rights will be further restricted. Explain.