Wasden visits Weiser, discusses Roe v. Wade decision

“The term ‘abortion’ does not appear anywhere in the U.S. Constitution,” Idaho Attorney General Lawrence Wasden emphasized during a meeting of the Washington County Federation of Republican Women.

 The meeting was intended to provide an explanation of the U.S. Supreme Court’s recent landmark decision overturning Roe v. Wade.

 More than a dozen guests came to hear Wasden’s thoughts, which he shared beginning with a brief history.

History

 Held as precedent for nearly 50 years, Roe v. Wade represents a seminal and controversial decision by the 1973 U.S. Supreme Court that struck down a Texas statute banning abortion, legalizing the practice across the country.

 The court said, in part, that the due process clause under the 14th Amendment provides a fundamental right to privacy that protects a pregnant woman’s right to choose whether to have an abortion.

 The court, however, said that the right was not absolute and must be balanced against the government’s interest in protecting women’s health and protecting pre-natal life. 

 “Now, recognize that the court of necessity, in rendering this decision, had to say that an unborn child did not have life,” Wasden said. “Why? Because if it had life, then the court was obligated to protect that life. So, in order to reach this decision, it had to say that it isn’t life.”

 The court subsequently created a “trimester test,” ruling that states could not regulate the first and second trimesters, or the first 22 to 24 weeks. After that, states could prohibit abortions.

 Hence, a construct was created, triggering a decades-long debate on whether the U.S. Supreme Court, as a judicial versus a legislative body, could decide when life actually occurs and at what gestational state an abortion could be performed.

 “The court drew a line, and that line was viability. That is, when can the fetus live outside the womb?” Wasden said. “The court defined that as 22 to 24 weeks. I’m not sure what qualifies the court biologically to make that determination, but it did.”

Planned Parenthood v. Casey

 The court upheld the essential holding of Roe v. Wade in 1992, in Planned Parenthood v. Casey, a lawsuit challenging the Pennsylvania Abortion Control Act of 1982. The court, however, did away with the trimester test, replacing it with something seemingly broader.

 “In Casey, [the court] … said the state cannot impose an undue burden on a woman’s right to abortion, but what does that mean?” Wasden posed. 

 Another implication in Casey was the application of stare decisis, or precedent, legal decisions that control subsequent legal decisions.

 “The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey,” Justice Samuel Alito wrote in a 67-page draft opinion in Dobbs v. Jackson, which was leaked to the public on May 2, 2022.

 He said that stare decisis, “plays an important role and protects the interests of those who have taken action in reliance on a past decision,” but added that, “The court’s cases have identified factors that should be considered in deciding when a precedent should be overruled.”

 He then provides “five factors” that, “weigh strongly in favor of overruling Roe and Casey.”

 Those factors are contained within Justice Alito’s opinion, which can be found on the Weiser Signal American website at www.signalamerican.com. They begin on page five of the opinion.

Dobbs v. Jackson

 The issue came before the U.S. Supreme Court again in December 2021 when Jackson Women’s Health Organization, an abortion clinic in Mississippi, brought suit against the state, challenging the Mississippi Gestational Age Act, which provides that abortions, except in the case of medical emergency or severe fetal abnormality, cannot be performed after 15 weeks. Jackson argued a right to abortion through the U.S. Constitution.

 Alito wrote, however, that the court’s Roe v. Wade decision was flawed from the start since the U.S. Constitution does not specifically provide that right.

 “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Alito stated in his opinion. “The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based.”

 The decision has been met with harsh public criticism and has even led to fire bombings of dozens of pregnancy centers, according to several sources, including a July 8 article by The Federalist.

Biden’s Reaction 

 President Joe Biden took decisive action following the court’s decision, signing an executive order that will “shield existing abortion clinics, promote unlimited abortion, and circumvent state laws to help send women to abortion appointments in other states,” according to The Federalist article.

 Biden signed another executive order on Aug. 3 that directs the Department of Health and Human Services to “consider action to advance access” to abortion services, including via Medicaid for women who travel out of state to obtain one, The Epoch Times reported on Wednesday.

 “Today’s executive order builds on the first executive order that I signed last month to safeguard access to … abortion care,” Biden wrote on Twitter. “I told you I wouldn’t back down. That hasn’t changed.”

Idaho a Target

 Idaho Gov. Brad Little recently signed into law the “Fetal Heartbeat, Preborn Child Protection Act,” which prohibits an abortion on a pregnant woman when a fetal heartbeat has been detected, except in the case of a medical emergency, rape, or incest.

 The law is expected to go into effect Aug. 19 because it was written to be “triggered” 30 days after any federal appellate court upholds a similar ban somewhere in the U.S. 

   The trigger happened on July 20 when Georgia’s 11th Circuit Court of Appeals lifted an injunction on the state’s abortion bill, which bans the procedure after fetal cardiac activity is detected, usually at about six weeks.

 Planned Parenthood is asking the Idaho Supreme Court to overturn Idaho’s ban, saying it is vague and unconstitutional.

 The organization’s argument is similar to Roe v. Wade in that it claims Idaho’s constitution provides a right to privacy and a right to abortion.

 “Their claim is that there is an Idaho constitutional right to abortion,” Wasden said. “My job is to defend the statutes and the constitution, which is to say, that is not what the Idaho constitution says, and the statutes are valid.”

 The future of abortion, since the overturning of Roe v. Wade, is now in state legislators’ hands, Wasden said.

 On Aug. 2, however, the U.S. Department of Justice filed a lawsuit challenging the state’s pro-life law, making Idaho the first to be targeted by the Biden administration for its state-level abortion bans.

 The lawsuit, filed in federal district court, alleges Idaho’s pro-life law violates the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals participating in Medicaid to provide emergency medical treatment to people who require it.

 The lawsuit alleges that EMTALA trumps state law.

 “Our nation’s highest court returned the issue of abortion to the states to regulate – end of story,” Idaho Gov. Brad Little said in an Aug. 2 statement. “The U.S. Justice Department’s interference with Idaho’s pro-life law is another example of Biden overreaching yet again while he continues to ignore issues that really should demand his attention – like crushing inflation and the open border with Mexico.”

 For more information on the Washington County Federation of Republican Women, contact Margaret Jensen at muggsy_jensen@msn.com.