The Supreme Court overturned Roe v. Wade after 50 years on June 24, leaving the issue of abortion to each individual state. The repercussions of this decision will vary between states, with some codifying the right to abortion into law and others banning abortion access immediately.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment,” said Justice Samuel Alito in the majority opinion. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty. The right to abortion does not fall within this category.”
According to Cornell Law School, “Substantive due process is the principle that the fifth and fourteenth amendment protect fundamental rights from government interference.”
Who gets to define what rights are fundamental? The Supreme Court does.
The crux of the opinion sat on the argument for states’ rights.
“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Blake Martin, a freshman studying electrical engineering, agrees with the reasoning of the Supreme Court.
“Regardless of how you feel about abortion, this is a win for the American people,” Martin said. “Having the ability to set your state’s laws is the driving force behind federalism, the system that our country was built on and has slowly drifted away from. Since abortion has been turned to the states, as intended by the 10th Amendment, we are able to set laws for ourselves as Americans without having someone on the opposite side of the country dictate our lives. Needs are different for different communities and having the federal government dictate big-ticket items like abortion makes our voices as Americans quieter and not as potent when it comes to self-governance.”
According to the Guttmacher Institute, 23 states hold laws that will restrict abortion access. Restrictions fall into three areas: pre-Roe bans, trigger laws and six-week bans.
Idaho is one of 13 states with a trigger law. Trigger laws are laws passed that could only be enforced if Roe v. Wade were overturned. Idaho’s law, passed first in 2020, will go into effect in thirty days.
The law outlines the following punishments for performing an abortion in the state:
— Every person who performs or attempts to perform an abortion as defined in this chapter commits the crime of criminal abortion. Criminal abortion shall be a felony punishable by a sentence of imprisonment of no less than two years and no more than years in prison.
— The professional license of any health care professional who performs or attempts to perform an abortion or who assists in performing or attempting to perform an abortion in violation of this subsection shall be suspended by the appropriate licensing board for a minimum of six months upon a first offense and shall be permanently revoked upon a subsequent offense.
Abortion in Idaho will be allowed with two main caveats. First, if it is necessary to prevent the death of the pregnant woman. Second, if the pregnant woman is a victim of rape or incest. However, the woman needs to have reported the incident in order to receive an abortion.
The concurring opinion written by Justice Thomas has drawn significant media attention.
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas said in his opinion. “Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
The cases of Griswold, Lawrence and Obergefell mentioned by Thomas involve access to contraception, homosexual relations and same-sex marriage.
“The issue is the same people who wanted Roe v Wade overturned likely don’t care for same-sex marriage,” said a former BYU-Idaho student, who wished to remain anonymous. “This situation just drives the country into a more polarized state. My big issue with it is that Roe v Wade favored all choice, whatever your choice may be. Overturning that favors one choice. It strips people of freedom in a free country.”
Justice Breyer, Kagan and Sotomayor all joined to write an argument against the Supreme Court’s ruling. They argue the decisions undermine women’s rights.
“It says that…a State can force her to bring a pregnancy to term, even at the steepest personal and familial costs,” the justices wrote. “An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. “
BYU-I students sought other methods to reduce the number of abortions.
“Making something illegal doesn’t stop it from happening,” said a former BYU-I student, who asked to remain anonymous. “It stops it from happening in the safest way possible. When there’s a will, there’s a way. We are all aware there are safer ways to prevent abortion. However, with a people founded by ignorance, we cannot achieve a viable solution that actually favors human life like the overturn claims to.”