JOHNSON CITY, Tenn. (WJHL) — If the U.S. Supreme Court actually overturns Roe v. Wade, a “cascading effect” of additional state and possibly federal lawmaking is likely, a Constitutional law professor says.
Lincoln Memorial University law professor Stewart Harris said states, including Tennessee, are poised to enact laws outlawing abortion if the court overturns Roe, which a leaked document suggests may happen this court term.
Harris outlined the history behind Roe and some potential ramifications of its reversal in an interview with News Channel 11 Tuesday, less than 24 hours after the leak.
Harris said the 1973 Roe case followed Griswold v. Connecticut, a 1965 case that Harris said “established a reproductive right to privacy.”
The word privacy appears nowhere in the Constitution, but Harris said the document’s Ninth Amendment “specifically opens the door to the Supreme Court finding new constitutional rights as time passes.”
He said the court has done that multiple times, but that the line of cases leading to Roe v. Wade in 1973 and Casey v. Planned Parenthood in 1992 has always been surrounded by controversy.
“In the simplest terms possible, ever since 1973, almost 50 years, women have had the right to get an abortion prior to fetal viability. After fetal viability, the state can actually outlaw abortion. So that’s the balance that the court struck all those years ago.”
That balance could shift depending on the court’s actions this term. The majority in the 7-2 Roe decision drew on the First, Fourth, Ninth and Fifteenth amendments and cited earlier cases that had found contraception, marriage and child-rearing were included in “zones of privacy.”
In Roe, the majority found that such “zones” could encompass womens’ decisions whether or not to terminate a pregnancy within the limit of fetal viability. It also ruled that a total prohibition on abortion violated the Fourteenth Amendment’s due process clause, which protects a citizen’s right to privacy against state action.
The majority agreed that a woman’s right to privacy is violated by state laws that broadly prohibit abortion without any consideration of the stage of a pregnancy or other factors that should have “relative weight” when also considering the state’s interest in protecting the “potentiality of human life.” (Oyez — A Free Law Project)
Harris said an actual decision in line with the leaked draft could serve as a channel “pointing the way to undercut … previous cases” that established rights to same-sex and interracial marriage and even the right to purchase contraceptives.
“It could have a cascading effect over the next few years,” he said. “That’s one of the many things people are concerned about.”
Biggest surprise? The leak itself
Harris said many court watchers were expecting something to happen with Roe v. Wade, though many thought it would be more incremental than a complete overturning.
“I don’t think anybody anticipated that we would have a leaked draft opinion which the chief justice has confirmed is an actual Supreme Court draft opinion,” Harris said.
He said the court is extremely strict regarding confidentiality. Chief Justice John Roberts has ordered an investigation, “as he should,” Harris said.
“Whoever did this is likely looking at a career-ending decision.”
If the final opinion follows the leaked draft, the country is likely to split into states that will continue allowing abortion and some that will outlaw it completely, Harris said.
“It’s probably what’s going to happen. In fact, here in Tennessee, we have a trigger law, which would immediately criminalize, make it a felony, to perform an abortion and which has no exceptions for rape or for incest.”
The law (Tennessee Code Annotated 39-15-213) says a woman “upon whom an abortion is performed or attempted” is not subject to criminal conviction or penalty. (The law makes performing an abortion a Class C felony.)
Tennessee Gov. Bill Lee cited the law in a Tuesday statement in which he also touted his record of introducing laws and working “with the Tennessee General Assembly to pass maximum possible protection for pre-born children.”
Harris said Tennessee could conceivably find criminally liable a woman who uses a day after pill, since she “would be performing her own abortion.” He also said states may follow the example of a Missouri legislator, who proposed a law this year that would allow private citizens to sue people who help Missouri residents obtain abortions out of state.
And Harris referenced recent reports, including one from Forbes, showing that national Republican leaders and Congress members are actively discussing a potential federal ban on abortion as early as six weeks into pregnancy.
“The constitutionality of one state doing that to things that happen in another state is very problematic, but that doesn’t mean they won’t try,” Harris said.
If Republicans take both houses of Congress and then the White House in 2024, “we could actually have a nationwide abortion ban that would be enacted, because that’s within the power of Congress to do.
“And so this could be the harbinger of a completely different Constitutional order in our country, at least when it comes to reproductive rights.”
Harris said the reversal of Roe would be a major blow to abortion rights advocates. On the other hand, he said it could “have an enormous energizing effect” on people opposed to its overturn. A Gallup poll conducted in 2021 showed a total of 80% of respondents thought abortion should be legal under certain (48%) or all (32%) circumstances.
Roe v. Wade remained in effect through numerous courts, some with conservative majorities. But Harris said the three justice replacements that Donald Trump was able to make between 2017 and 2020 tilted the court’s balance.
While one replaced a conservative who may have voted to overturn Roe (Antonin Scalia), the others replaced a moderate (Anthony Kennedy) and a solid liberal (Ruth Bader Ginsburg). All three new justices are shown in the leaked opinion as favoring Roe’s reversal.