The Tangled Issues Associated with Abortion Laws and State Powers

The Overwhelming Role of the Supreme Court and the Importance of Balance

Figuring a path through the minefield of abortion laws is a nerve-racking task, given the intimidating power that executive decisions and judicial rulings wield. This power is all too evident in the wake of President Donald Trump’s re-election, and the subsequent surge in pressure on abortion rights. Far from calling for a flat-out ban, Trump’s approach has been one of repealing federal regulations via executive authority — regulations that currently offer essential protections for the right to choose.

Presidential Promises — Reality or Rhetoric?

Digging into Trump’s stance, we find steadied pledges of “returning abortion to the states,” and claims that “this is what everyone wants.” However, these assurances not only overlook the contentious nature of abortion laws but also misrepresent the subtle details included in the famous Roe v. Wade decision that anchored abortion regulation within state authority.

State Control of Abortion — The Hidden Complexities

Taking a closer look at the argument that the states should control abortion, one finds a thorny problem: state regulation of this issue already existed in the context of Roe. Thus, the argument that voiding Roe simply ‘returned abortion to states’ is far from the truth. In fact, the Dobbs v. Jackson decision has opened the door for states to instate heavy-handed restrictions on abortion, sometimes even negating exceptions for incidents of rape or incest and criminalizing the procedure entirely.

Tweaking Roe, Not Trashing It — A Missed Opportunity?

Roe v. Wade, despite its complicated pieces, introduced a sense of balance in the highly contentious topic of abortion. The decision agreed upon in Roe, although worded clumsily, was more about managing your way through the twists and turns associated with the issue rather than enforcing a black and white doctrine. It relied on a trimester system to balance two key interests: the right to protect unborn life, often held by the state, and a woman’s right to privacy and autonomy in her choices regarding abortion.

The Balance in the Trimester System

The trimester system, a critical part of Roe, was designed to strike a balance between the rights of the woman and that of the state, with the viability of the fetus as the guiding principle. It placed more weight on a woman’s right to privacy in early pregnancy, ceding more authority to the state as the pregnancy progressed.

The Aftermath of Abandoning Balance for Absolutes

Yet, this balanced system was abandoned in the Dobbs decision, which declared that the right to privacy did not encompass the choice of abortion. Consequently, states now wield unrestricted power to dictate their abortion laws, possibly leading to stringent measures that can ban abortions from as early as six weeks into a pregnancy or impose criminal charges on women who have abortions.

The Disconcerting Potential of Unrestricted State Power

The reality of this situation is quite scary — raw majorities in the states now wield overwhelming power in deciding abortion laws, with no substantive guiding principles or boundaries. This lack of balance can pose a potentially serious problem given that abortion remains a super important and contentious issue.

Need for Re-balancing — A Return to Roe?

The decision of Dobbs seemed to topple the equilibrium. Roe v. Wade, despite its drawbacks, represented a noble attempt to balance radically opposing views of a socially explosive issue. Today, there is more need than ever to reinstate balance to the country. We need equilibrium in our laws and society to combat the polarizing effect that such unfettered power can create.

Originally Post From https://www.duluthnewstribune.com/opinion/columns/pro-con-states-had-ability-to-regulate-abortion-before-trumps-return

Exploring State Powers to Regulate Abortion Prior to Trump’s Tenure