The true aftermath of Roe v. Wade

After Politico published the leak heard around the world of Justice Samuel Alito's draft to reverse Roe v. Wade, the issue of abortion once again took center stage in our American drama.  Republicans pounced, and Democrats turned apoplectic.  Now our already hyper-divided nation faces another litmus test to challenge the boundaries of political dissent from supporters and opposition alike.

Pro-choice advocates are fighting the end of free access to abortion with all they've got.  Meanwhile, pro-life supporters continue to praise Justice Alito's 98-page opinion.  Unfortunately, abortion has become a fixture of public policy, supercharged by advocacy groups and opposition alike.  Yet both sides are missing one crucial detail: the fall of Roe won't mean the end of abortion so much as it'll mean a return of state's rights over the matter.

Pro-choice advocates should realize that the leaked majority opinion on Dobbs v. Jackson Women's Health does not spell the end of abortion in the U.S.  And those who see abortion as a mortal sin should realize that the opinion is no final victory.  If Roe is overturned, states will simply have the authority to permit or regulate abortion however they see fit.

The state of New York already has abortion laws in place, while California is on the move to vote on a state constitutional amendment to protect abortion "rights."  On the flip-side, Texas and Oklahoma have banned most abortions through legislative measures.  Should Roe be reversed, liberal states will most likely codify abortion policy, whereas red states could move to regulate abortion laws, regardless of Americans' mainstream support.

Public opinion has been largely consistent since 1973, with approximately 50–60 percent of Americans believing that abortion should be legal in some circumstances.  However, pro-life and pro-choice opinion is mostly dependent on state choices.  In fact, ten state supreme courts have ruled that a woman's "right to choose" is protected.  The other forty are up for grabs.

Image: United States (cropped) by freepik; Pro-Life sign by James McNellis (CC BY 2.0); Pro-Choice sign (cropped) by Charles Edward Miller (CC BY-SA 2.0).

Regardless of pro-choice outrage and pro-life exhilaration, overturning Roe won't mean that abortion is banned or restricted everywhere and forever.  The Constitution does not mention the term "abortion," nor does it provide any clause or stipulation that can sway abortion policy in a partisan manner.  Simply put, this is not a judicial matter — it's a matter for state legislatures.

From a legal perspective, Roe has long been considered flawed because of its weak constitutional grounding.  There is nothing in the Constitution to allow the Court to supersede states' lawmaking procedures.  Thus, the Supreme Court's existence relies on precedent instead of whataboutisms, which is precisely how Roe was decided 50 years ago.

Overturning this half-century decision may sound like a dystopian scenario to some but, in reality, will not provide an irreversible determination for either side.  If Roe falls, it'll be because it's simply faulty law.  Abortion access shouldn't be a judicial issue — it should be a legislative one.

The highest court of the land has an obligation to interpret the law and Constitution, not to dictate public policy and bow to the elite's political preferences.  If pro-choice supporters truly believe that the sky is falling, there is a process to introduce a constitutional right to protect abortion into the Bill of Rights.  And if the pro-life crowd wants to prevent such action, they too should participate in our political procedures.

Jorge Velasco is a contributor for Young Voices and former staffer for two U.S. members of Congress.  He is currently a candidate for a Bachelor of Arts degree in government and international politics at George Mason University.  Follow him on Twitter @velascoAjorge and Instagram @jorgevelasco__.

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