The leak of a draft opinion that appears to indicate the Supreme Court is poised to overturn the landmark abortion decision Roe v. Wade has sparked strong reactions on both sides of the aisle.
And during an appearance on CNN on Tuesday, Rep. Pramila Jayapal (D-Wash.) made a wild assertion.
“These justices are acting like this is somehow something that they have the right to change,” Jayapal said.
She insisted, “They do not have the right to change this which has been settled law for two generations now of people who have grown up, who have gone through their twenties, in the firm belief that they can make these decisions about their own bodies.”
“The only thing that has changed is the makeup of the Supreme Court,” she added.
Watch the video below:
Rep Jayapal: "These Justices are acting like this is somehow something that they have the right to change. They do not have the right to change this." pic.twitter.com/JdeG6bIoNb
— Washington Free Beacon (@FreeBeacon) May 3, 2022
Whether you like it or not, the fact is that today’s Supreme Court does, in fact, have a right to overturn Roe v. Wade.
In the Constitution, there is no amendment that explicitly establishes a right to an abortion.
Instead, the Supreme Court issued two decisions, Roe and Planned Parenthood v. Casey, which dictated that abortion is protected by the 14th Amendment.
And according to the draft opinion, the justices today have decided that Roe was an “egregiously wrong” decision.
The Supreme Court was designed to be the final say on questions about the Constitution.
However, its justices — with lifetime appointments so that they are not influenced by political pressure — are not immune to issuing problematic rulings, and while its decisions are almost set in stone, there are two ways to make changes to them.
The first is by going through the process of passing a new amendment to the Constitution.
And the second is another Supreme Court decision.
So in a technical sense, it is quite false to say that the Supreme Court does not have a right to overturn Roe v. Wade regardless of how long it has been on the books.
It’s also worth noting that overturning Roe would not ban abortion nationwide. It would be left to the states. And 23 states have laws that restrict or ban abortion if the decision is overturned.
Democrats in Congress could try to pass a national law codifying abortion protections and see if it holds up.
But while millions of Americans probably felt sure that abortion was protected by Roe and Casey, it ignores the weakness of relying on the court to interpret the Constitution to determine whether a right is protected.
Just as quickly as the high court determines that something is a right, years later, with a different makeup of justices, it can decide that decision was wrong.
If Americans genuinely believe that abortion should be a Constitutional right, they could organize and try to pass an amendment which could forever enshrine national abortion rights.
Of course, that amendment could be repealed. But in our country’s almost 250 years, only one amendment has ever been repealed — the 18th amendment, which created Prohibition.
