The Right To Access Abortion Is On The Ballot This November. Judge Candidates Carefully.

By Sylvia Lazos, Nevada Current

October 7, 2022

We are living in a time of uncertainty as to the meaning of the US Constitution. It is unprecedented.

Law is a combination of federal and state constitutions, statutes, regulations, and ordinances. The U.S. Constitution’s supremacy clause (Art VI) establishes that the federal Constitution takes precedence over state laws and even state constitutions. The Supreme Court’s interpretation of the 14th Amendment has created vast areas where states cannot legislate, and the U.S. Constitution supersedes. The content of individual liberties that fall under the 14th Amendment due process clause (“no state shall deprive any person of life, liberty or property, without due process of law”) has been broad, and in 100 years, Supreme Court cases have come to protect parental rights to send children to religious schools (Pierce v Society of Sisters), the right to access contraception (Griswold v Connecticut), and gay marriage (Obergefell v Hodges).

This summer, in Dobbs v Jackson Women’s Health, the Supreme Court overturned Roe v Wade which protected the right of women to access abortion. This case triggered a crisis in Americans’ understanding of the content of protected rights under the Constitution. According to an August 2022 Pew Research opinion poll, Americans lost confidence in the Supreme Court – their overall favorable view of the Court declined by 20 points from two years ago. After Dobbs, those surveyed were virtually tied (48-49) in their favorable/unfavorable views of the Court. Fully 48% do not believe that the Court has done a good job keeping political views out of how the Court decides major cases.

For some, this instability is what they have wanted for a long time. For others it is frustrating and confusing. Count among the frustrated Republican Sen. Susan Collins of Maine, who believed that she could do both: protect the right of women to decide when to have a family and vote with her party for Brett Kavanaugh’s ascension to the U.S. Supreme Court. She extracted assurances from Kavanaugh that he would stick to precedent – a rule that current justices of the Supreme Court will follow decisions made by past majorities of the Court. Respect for precedent promotes rule stability and anchors popular belief that the Court is apolitical. However, in Dobbs, Justice Kavanaugh and his colleagues also changed the rule as to when precedent applies. Thus, we are in a new era in which the Supreme Court will be changing what Americans previously thought was “settled” constitutional law. This 2022-23 term, the Supreme Court is poised to change the rules as to how courts settle electoral disputes, amplify the right to exclude gay men and lesbians based on religious beliefs, and end affirmative action in university admissions.

As Constitutional protections diminish, state legislatures will have more discretion to infringe on individual rights. The federal Constitution that established limits on legislatures’ discretion is steadily being cut back by this new 6-3 Supreme Court majority.

But voters can make a difference. Legislatures’ discretion can be limited — if voters exercise their power to vote and choose representatives who align with what they think the Constitution should stand for.

Beware of candidates who are trying to confuse. One candidate has suggested that if a federal law were passed regulating abortion, it would be unconstitutional. This is misleading. Dobbs holds that there is no fundamental right to abortion. That leaves legislatures without constitutional limits on what they can do in this area, so Congress and state legislatures can limit, or expand, abortion rights through statute. More specifically, Congress could pass a statute, like those passed by Alabama and Idaho, that completely takes away the right to access abortion, with no exceptions for rape or incest. By contrast, the House during this session has twice passed legislation that would protect access to reproductive care, The Women’s Health Protection Act and Ensuring Access to Abortion Act. Because of the Constitution’s supremacy clause, federal law will supersede state law. So Nevada’s law protecting access to abortion will be superseded by whatever Congress enacts and a president signs into law..

During the next weeks, candidates who in the past have staked out positions that are now on the wrong side of where voters stand will be re-writing their positions. Some are switching positions almost weekly.. For voters, it will be important to learn where each candidate stands. It’s more important than ever that voters be informed, and candidates owe it to the voters to be honest and forthright.

Nevada Current, a nonprofit, online source of political news and commentary, documents the policies, institutions and systems that affect Nevadans’ daily lives. The Current is part of States Newsroom, a national 501(c)(3) nonprofit supported by grants and a coalition of donors and readers.