Just as anti-choice activists chipped away at Roe for 49 years, pro-choice activists can try to chip away at Dobbs, one case at a time, writes jaymichaelson
Rachel Nix, 24, sits on a curb while processing the Supreme Court’s decision in Washington, D.C. Photo: Brandon Bell/Getty Images The Supreme Court’s decision overturning Roe v. Wade is, without a doubt, the end of an era. For the foreseeable future, there is no constitutional right to abortion.
State laws can also be used to defend abortion rights where Religious Freedom Restoration Acts, or RFRAs, are in force. Under the RFRA, any time a law substantially burdens religious practice, the government must show that law is narrowly tailored to further a compelling state interest.
At the end of Justice Samuel Alito’s 79-page majority opinion — on page 77, in fact — is a cursory section stating that since “procuring an abortion is not a fundamental constitutional right … States may regulate abortion for legitimate reasons” and that mere “rational-basis review” is the appropriate standard for reviewing challenges to abortion laws.
The level of scrutiny often decides the outcome of a case. In Hobby Lobby, for example, the government clearly had a rational basis for including contraception coverage in employer-sponsored insurance plans. But because the Supreme Court required strict scrutiny, the government lost because its requirement was not narrowly tailored enough. As a result, the government had to give religious organizations and businesses an exemption to the requirement.
Now consider a challenge to Missouri’s abortion ban, which immediately went into effect. This law has no exceptions for rape or incest. Under the Court’s new rational-basis review, that ban is almost certainly constitutional because Missouri can simply decide that the state’s interest in protecting “potential life” justifies it.
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