Old World of Reproductive Law: How Does Abortion History Affect Our Current Climate?

Dobbs v. Jackson Series: Article 1

Roe v. Wade Has Been Overruled

Why? And What Does it Mean For Me?

By now, you have heard that one of the most critical cases of the century, Roe v. Wade, has been overruled by what will almost certainly be one of the most important SCOTUS rulings of our time, Dobbs v. Jackson. However, after this ruling, many people are left wondering: what exactly does this mean, and why did it happen? 

In this article, we will explore the history of abortion law, its important landmark cases, and what led to Dobbs v. Jackson.

The Old World of Reproductive Law: From Antiquity to English Common Law

The bones of our legal system are Roman. Any lawyer of antiquity, like Cicero or Cato, would understand our legal system’s foundations. The meat is Anglo-Saxon common law developed over time by cases and practice. Only the skin of our system is uniquely American. To understand reproductive law, we need to know what systems were built.

Roman Law Regarding Abortion

The ancient Romans were not unfamiliar with medicinal abortion. There is a plant from Roman writings called Silphium, which they drove to extinction from overharvesting. Silphium was utilized to either regulate pregnancy cycles or induce a chemical abortion. The paterfamilias, or “head of household” of a Roman family, had broad authority to regulate the family’s reproduction. This broad authority, without judicial intrusion into the family’s affairs, extended over the life of the members of the family until they were old enough to be independent.

English Common Law Regarding Abortion

After Rome withdrew from Britannia, the Anglo-Saxons established their culture and body of law on top of the Roman one. One of the earliest treatments the common law gave to medical abortion is from William Blackstone’s Commentaries on the Laws of England, published in 1765. Blackstone identified that in most jurisdictions surveyed, a medicinal abortion was allowed until “quickening.” That is, until the first time a woman felt movement in her womb. Blackstone did not create this rule. Instead, it was part of the tradition of Anglo-Saxon common law stretching back into history; he merely wrote it down for others to reference as a resource. 

The American colonies’ legal systems were a direct product of this body of English common law. In the colonies and then the early states that followed, abortion of a quickened child was a crime. It was at least a misdemeanor and was often prosecuted as murder. In 1803 the British Parliament made abortion a crime at all stages of pregnancy, and within the next century, all states followed Parliament’s legislative example, as was often the case. The takeaway is that before Roe, each state regulated what the word “abortion” meant and whether any actions that constituted abortion were permissible, and if so, when and how.

The Roe Decision

In 1973, an opinion for a case called Roe v. Wade was issued. The Supreme Court did away with the assortment of state laws and replaced them with another hodgepodge of state laws. However, some hard lines controlled when a state could enforce its law. The Court in Roe v. Wade specifically crafted a rather complicated framework of what things the states could do based on the trimester of a human pregnancy. However, the “central holding” (and that phrase is going to be important) was that the right to choose abortion before fetal “viability” was fundamental. 

Still, a fundamental right is not allowed to be exercised with absolutely no say-so from the government. However, restrictions on fundamental rights are subject to the highest level of scrutiny. That is, the government has to prove that restricting the fundamental right is necessary for a compelling interest of the government and that the restriction is the least restrictive way to give that interest. 

After Roe v. Wade, states immediately began passing laws about what could occur to restrict abortion after viability in line with the trimester framework, and some attempts were made to assert influence over pre-viability abortion. Viability was defined as the point at which a fetus could survive outside the mother’s womb, with or without medical intervention. 

If that sounds like it’s a moving target, you’re correct. In 1973, the commonly accepted threshold of fetal viability was 28 weeks. Nowadays, the threshold of fetal viability is about 23 weeks. The Court in Roe recognized that medicine would improve and that, over time, it would become easier and easier to keep younger and younger newborns alive medically, so the states would have a greater and greater ability to restrict abortion on that same scale. In some ways, this means the seeds of their expiration because it is not inconceivable to believe that one day medicine will advance to the point that a fetus is medically viable from conception.  That, however, is only academic speculation.

The Casey Decision

The most significant change to Roe’s “central holding” occurred in 1992 when another landmark case called Planned Parenthood of Southeastern Pennsylvania v. Casey (Casey) was decided. Casey reaffirmed Roe’s central holding that the right to choose an abortion was fundamental before viability. However, Casey scrapped Roe’s complicated trimester framework and laid out a single set of rules that the Court hoped would settle the issue. 

The Casey court held that before viability, a state could regulate abortion in ways that did not impose an “undue burden” on the woman. The state’s interests in abortion were agreed to be compelling, and undue burdens were deemed the least restrictive ways to give those interests effect. The Casey court considered some things not to be undue burdens. Such as a waiting period, informed consent about the procedure, and recordkeeping and recording requirements. It considered some other things to be undue burdens, like requiring the notification of a woman’s spouse if she had an abortion.

The Cold War Years

From 1992 to 2022, the Casey standards were largely intact. A case would go before the Court, and abortion would be regulated in ways that it wasn’t the previous year. Or a new viability line would be recognized, and a new set of actions would be considered due or undue burdens. This resulted in a cold war of abortion cases. No earthshaking movement in one direction or another occurred legally. The various arguments for or against the status of abortion evolved and took place across legacy media, campuses, and social media. Nevertheless, the central holding of Roe endured. 

This article was written by an experienced legal counselor at Counxel Law Firm. We hope to provide clarity and context for the current ruling of Dobbs v. Jackson. For any other legal questions, please contact Counxel at 480-536-6122.

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