When Is a Political Ad Misleading?

The airways and TV are blanketed with claims that Roe v. Wade eliminated the right to abortion and is the fault of Donald Trump.

In Roe v. Wade the United States Supreme Court ruled that the Constitution of the United States protected the right to abortion, at least in the first trimester, with limitations in the second and a ban in the third.  Roe v. Wade did not permit abortion on demand.  Of the six Justices who joined in the Dobbs Opinion overturning Roe, three were nominated by Donald Trump.  The Chief Justice, a Bush nominee, concurred in the judgment to uphold Mississippi’s 15-week abortion ban, but he wrote that he would not have overturned Roe v. Wade.

Three Democratic nominees voted to keep the Roe v. Wade ruling in effect.

The real question is whether Dobbs’ overruling of Roe affected the number of abortions performed in the United States.  As of March of 2024, in spite of the Dobbs Opinion, an estimated 1,037,000 abortions occurred in the known healthcare system in 2023, the first full calendar year after Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade.  At 15.9 abortions per 1,000  of reproductive age, this is an 11% increase since 2020.

In other words, Dobbs has resulted in an increase in the number of abortions.  Why is that?

There are those who argue that abortions have increased because of the increased availability of telehealth, enhanced financial support for abortions or, perhaps most convincingly, that the majority of states now have few restrictions on abortion at any stage of the pregnancy.

Letting the people decide their state’s abortion policy has resulted in many states lifting most limitations on abortion, and enhancing the availability of abortion through financial and educational incentives.

Presumably, the citizens of the United States could amend the Constitution so as to clearly provide for the right to abortion in the 1789 document.  There have been 27 amendments to the Constitution beginning with the Bill of Rights, the first 10 amendments which were ratified in 1791.

Rather than amend the Constitution, the United States has engaged in a legal battle as to whether the Constitution should be understood as providing for the right to abortion based upon freedom of association and such other concepts presumed to be found in the First, Fifth, and Fourteenth Amendments which deal with free speech, freedom of association, equal protection, and due process.

In Pennsylvania, for example, abortion is banned after 23 weeks, 6 days of pregnancy.  Most neonatologists are in the business of saving babies at anywhere from 21-22 weeks.  At 23 weeks 6 days, many would argue that a baby is viable and can be saved.  All of its organs have been formed, although the baby is not ready for birth.

The website entitled AbortionFinder correctly points out that “Roe being overturned is not the same thing as there being a federal ban on abortion.  Roe being overturned means the constitutional protection that was in place has been removed, and the states are no longer limited on what kinds of abortion restrictions they can pass.”

According to AbortionFinder, 14 states have enacted a total ban on abortion.  They are states mainly in the deep south and in the west. However, those same states do not totally ban abortion, regardless of what the “Finder” states.  For example, in West Virginia there are exceptions, whereby abortion is permitted to save the pregnant woman’s life, to preserve the pregnant woman’s physical health, if the fetus is not expected to survive the pregnancy, or if the pregnancy is as a result of rape and/or incest. Even in Alabama there are exceptions, permitting abortion to save a woman’s life, to prevent serious risk to the woman’s physical health, and if the fetus is not expected to survive the pregnancy.

A state by state review of the 14 states that ban abortion demonstrates that one state grants at least one exception, and that most states with abortion restrictions have additional exceptions.

According to Roe, during the first trimester, 12-13 weeks, a state could not regulate abortion.  However, after that period of time, states were permitted to regulate abortion to the extent those regulations were related to the health of the pregnant person.  During the third trimester, the last 12-13 weeks of the pregnancy, the state’s interest in protecting human life was said to outweigh the right to abortion.

Therefore, the current state law pattern is very close to what Roe v. Wade permitted except as to those 14 states which permit abortion where the woman’s life is in question, but otherwise restricts the procedure.

None of this is to say that who gets appointed to the United States Supreme Court should be a non-issue in presidential elections.  It has been an important component of the presidential debate ever since the federalists and anti-federalists argued over the power of the courts to influence state law.

What is true is that politicians who claim that Roe v. Wade protected the right to abortion and that Dobbs prohibits abortions, are not telling the public the truth.

An important footnote to the question is that in some states that initially restricted abortion, the voters or the state courts overturned those restrictions.  The voters had their say in states where abortion was more restricted than the citizens were willing to tolerate, and the law was changed.  The next battleground is whether Congress will enter the fray.  If it does, will its efforts stand or be struck down by Commerce Clause limitations or the exercise of federal power!

The question of state’s right versus an all powerful, compelling federal government dictated by the Executive or the Supreme Court of the United States is a marvelous political science class debate, but unfortunately the political parties are not giving the voters much credit for digging into the facts.