The whole basis of the recent Supreme Court decision overturning Roe v. Wade was that there is no right to abortion in the constitution. The same thing is also true of the right to contraception usage or same-sex intimacy and marriage. Justice Clarence Thomas has pointed this out.
Some of the Supreme Court justices who supported the recent decision said that the issue should be decided by the states. Abortion was legal in several states even before Roe v. Wade. However, this will inevitably result in penalizing those of limited means in the states that ban abortion even more severely than under the existing state restrictions on abortion access. In these modern times of universal access to information and culture, there is no logical reason why every state should be different in this regard.
It is important to recall that Roe did not open the door to all abortion. In the first trimester (13.3 weeks), the abortion decision is left to the woman’s physician. In the second trimester, the state may regulate abortion procedures in ways that are reasonably related to maternal health. In the third trimester, the state may proscribe abortion except when medical judgment concludes that the life of the mother is at stake. A related case, Planned Parenthood v. Casey, established the criterion that states may not place undue burdens in the way of a person seeking abortion. Presumably the demise of Roe v. Wade has also made this decision moot, but while it was in force, states including Florida pushed the boundaries of undue burden, passing laws that inevitably would be declared unconstitutional.
In Florida, the law prohibiting abortions after 15 weeks goes into effect July 1st, 2022. As noted above, this would allow the vast majority of abortions to remain legal. However, Governor DeSantis has just (6/24/22) stated that Florida will “work to expand pro-life protections”. Florida has a unique right to privacy law in the constitution that was used 30 years ago to protect abortion rights. On the other hand, Florida also has laws requiring a 24 hour wait for abortion and requiring parental consent for minors.
The right to reproductive choice should be established in national law. The Women’s Health Protection Act, also known as WHPA, was reintroduced in the 117th Congress by lead sponsors Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) in the House and Senators Richard Blumenthal (D-CT) and Tammy Baldwin (D-WI) in the Senate. The bill was passed by the US House of Representatives in September 2021, but it did not pass the Senate with the 60 votes required to overcome a filibuster on February 28, 2022. The vote was along party lines. “If enacted, WHPA would protect abortion access nationwide by creating a statutory right for health care providers to provide, and a corresponding right for their patients to receive, abortion care—free from restrictions and bans.”
Would the Equal Rights Amendment support abortion rights? Some think so, based on the idea that restrictions on pregnant persons differentially impact women. The Brennan Center says, “The long push to get the Equal Rights Amendment over the finish line could strengthen equality-based arguments and protections for abortion rights nationwide.”A Google search on the topic reveals a number of anti-abortion groups who are adamantly opposed to the ERA for this very reason.
Finally, legality and morality are not the same. Many things that are arguably immoral, such as promoting oneself at the expense of others, are perfectly legal and in fact encouraged in some contexts. Another organization I belong to was required by the Federal Trade Commission to desist from promoting its collegial code of ethics, because some of its provisions were deemed to be a conspiracy in restraint of trade. The decision to have an abortion is a complicated one, and indeed it is possible that some decisions might be immoral. But given the lack of agreement among major religions regarding abortion, I do not believe that the law is capable of distinguishing between immoral abortions and moral ones.