Now that the US Supreme Court has reversed its 1973 ruling in the case of Roe v Wade, there is no nationally-protected legal right for women to have abortions. The permissibility of abortion and any limits on it are up to each state. And many states have been eager to prohibit or greatly limit abortion.
Georgia’s 2019 “heartbeat” law, for instance, bans most abortions once a physician finds evidence of a fetal heartbeat, which typically happens at around the sixth week of pregnancy. The heartbeat law has been expected to substantially reduce the frequency of abortions in Georgia, but in July, 2020, was declared unconstitutional by a federal judge. Georgia authorities hoped that the state would eventually win on appeal to the US Supreme Court.
And in Texas in 2021, Senate Bill 8 took effect. The statute now appears likely to be upheld by the higher federal courts after the Supreme Court reversed Roe..
The law, instead of criminalizing abortions after six weeks, deputizes private citizens to sue anyone who “aids or abets” the provision of such an abortion, with successful plaintiffs receiving a minimum of $10,000.
On the other hand, the Illinois legislature has proclaimed abortion a “fundamental right” and eliminated many restrictions on abortion clinics. According to the U.S. Supreme Court in Washington v. Glucksberg (1997), fundamental rights are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” In view of this, the number of abortions in Illinois will probably increase. The same is true of California, where in 2022 our state became one of three states — along with Vermont and Michigan — where voters approved measures to establish a right to abortion and reproductive freedom in their state constitutions.
Pro-choice advocates have called for a boycott of Georgia and Texas. But abortion opponents condemned the Illinois and California laws as sanctioning killing.
Hard feelings are inevitable when one side sees abortion as a fundamental right and the other as homicide. But it has been suggested that in a federal system the US Supreme Court should simply let each state decide the matter on its own.
Abortion could be legal is some states and illegal in others.
Should this be allowed?
Can federalism solve this problem? Why, or why not?
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