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MINOT, N.D. — For the first time in American history, a Supreme Court draft opinion has been leaked to the press prior to the court's final ruling. And, of course, it pertains to one of the most intractable political issues in our country's history.
First, let's acknowledge that this is a terrible thing.
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
— SCOTUSblog (@SCOTUSblog) May 3, 2022
If the draft opinion, first published by Politico and authored by Justice Samuel Alito, is the real deal, and what the Supreme Court ultimately issues as an opinion in case from Mississippi before it , then every state in the union would be free, once again, to ban abortion.
Or to implement more severe regulations of it than the courts have been willing to countenance since Roe V. Wade was first decided.
That's a unique facet of this debate that many overlook. In Roe, the courts didn't legalize abortion so much as they said it's unconstitutional to ban it. If Roe is overturned, abortion would continue to be legal in some states.
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But it won't surprise you to learn that many states have prepared their laws for the demise of Roe as legal precedent.
According to the Guttmacher Institute , a pro-abortion advocacy group, 16 states have laws on the books protecting, while 23 have restrictions that would go into effect if Roe is overturned, including nine states with outright bans.
North Dakota is among those nine.
How should we feel about the Supreme Court overturning Roe? I'm pro-life, but I'm not so sure, these days, about the efficacy of abortion bans as policy, though I do believe abortion issues should be settled democratically and not through judicial fiat.
"The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting," former Justice Antonin Scalia wrote in Planned Parenthood v. Casey.
I agree with that sentiment.
As a matter of policymaking, I think our time is better spent on trying to prevent unwanted pregnancy by making contraception and sex education easier to access. Our society will never find a place of comity on the abortion question, so better to focus on making it a moot debate.
If women are only pregnant when they want to be, then abortion becomes a much less important question of policy. Let's figure out how to make that happen.
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Alas, that is not the status quo, so the Supreme Court striking down Roe, if that's what is to happen, will inflame our already deeply divided society even further.
What would the law be in North Dakota if Roe is overturned? In short, abortion would be illegal, but let's run through everything that's on the books.
The state has a lot of regulations on abortion already. They're in chapter 14-02.1 of the North Dakota Century Code, called the "abortion control act."
Abortion is currently illegal in our state after 20 weeks except in cases or rape or incest or medical necessity.
The use of telemedicine to provide an abortion through medication is illegal.
The parents of a minor child must consent to that child getting an abortion.
There are restrictions on when insurance can cover abortions, and abortions performed for things like sex selection, or genetic anomalies such as Down syndrome, are illegal.
There are more regulations, but you can read the chapter for yourself above. Let's get into the laws contingent on the attitude of the courts toward abortion.
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Also on the books is a ban on abortions after a baby's heartbeat can be detected. That's sometimes described as a six-week abortion ban, but it has never been in effect since it was passed in 2013. It was permanently enjoined by the courts, with SCOTUS upholding that decision in 2016 .
There is also a prohibition on "human dismemberment abortion" which would go into effect upon the "issuance of the judgment in any decision of the United States Supreme Court which, in whole or in part, restores to the states authority to prohibit abortion."
The process for that would involve Attorney General Drew Wrigley's office certifying to Legislative Council that such a turn of events has come to pass, in which case this section would become law 30 days later.
Finally, in the criminal code, under section 12.1-31-12 , there is a total ban on abortions except for the usual exceptions for medical necessity, rape, or incest. Under that ban, which was first enacted in 2007, abortion would be a class C felony, though the law, again, is only triggered if Roe is overturned.
Presumably, if Alito's opinion is what's to come, the court's injunctions would fall away, leaving the total ban on abortions, and the more superfluous heartbeat bill and ban on dismemberment abortions, in effect.
We don't know that will happen. We don't even know that Alito's draft opinion, which was reportedly first circulated back in February, would be the same if it becomes the majority opinion of the court.
If Roe is overturned, the response will be furious, but I think it would be the right move from the courts. This issue never should have been settled by judges. As Scalia wrote 30 years ago, it should be settled by democracy, as difficult and infuriating as that process can be.
