1/There is much fear mongering by the Left of the #KavanaughSCOTUS, particularly a threat that his seat will somehow overturn Roe v. Wade, 410 U.S. 113 (1973). No doubt, most of those pushing this narrative have never read the Roe decision (caselaw.findlaw.com/us-supreme-cou…).

2/It's important to note that the Left doesn't bring up Planned Parenthood v. Casey, 505 U.S. 833 (1992), where the Court re-affirmed its Roe decision, with some minor changes (law.cornell.edu/supremecourt/t…).

3/Roe challenged Texas' statute criminalizing abortions with the exception of "saving the life of the mother" and, at times, rape or incest (noe: Norma McCorvey ("Roe") lied that she was raped, but didn't produce a police report, so she was denied).

4/The Court, in dicta, stated the Constitution does not explicitly provide for the right of privacy, but that precedence recognized a right to personal privacy or guarantees of zones of privacy in, eg, 1A, 4A, 5A, 9A and 14A (Roe, 410 U.S. at 153).

5/Thus holding the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (Id).

6/The Court specifically listed reasons enumerated by the plaintiff that are factors a woman and her physician would consider in deciding whether or not to terminate.

7/However, it specifically rejected appellant's argument "the right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. (Id.).

8/Instead, the State "may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life." (Id. at 154).

9/SCOTUS concluded, while the "right of personal privacy includes" abortion, it is "not unqualified & must be considered against important state interests in regulation." (Id.; see also id. at 155 (protecting prenatal life), 156, 159 ("woman's privacy is no longer sole").

10/The Court held it need not decide when life begins (Id. at 160), but settled on "viability" of a fetus (id. at 163); (then medical literature determined 28 wks, or as early as 24) thus, until 6 months of pregnancy.

11/The Court further held States could forbid abortion after viability "except when necessary to preserve the life or health of the mother." (Id. at 164; accord Doe v. Bolton, 410 U.S. 179 (1973) (may obtain an abortion after viability, if necessary to protect her health).

12/In conclusion, the Court set forth is trimester formula:

13/Prior to the end of the first trimester, there were no restrictions (id. at 164), based on "now-established medical fact [] that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth." (Id. at 163 (referencing at 149)).

14/After the first trimester, but before viability, a State "in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." (Id. at 164).

15/Lastly, after viability, the State "in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of ...

16/... the life or health of the mother." (Id. at 164-65). This is "because the fetus then presumably has the capability of meaningful life outside the mother's womb", thus having "both logical and biological justifications." (Id. at 163).

17/As noted above (2, supra), the Left doesn't talk about the 1992 Casey decision, where SCOTUS re-affirmed the right to privacy includes an abortion, but removed the Roe trimester framework.

18/Instead, SCOTUS found that medical technology advanced and accuracy of viability could be at 22 or 23 weeks (see Casey, 505 U.S. at 860, 870), and that at the point of viability, the State could regulate (or proscribe) abortion.

19/More importantly, SCOTUS held that prior to viability, the State could show concern for fetal development so long as it did not impose an undue burden on abortions (see id. at 873, 876-78) (ie a substantial obstacle); thus replacing the strict scrutiny analysis and ...

20/... "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends." (Id. at 877).

21/Subsequently, the Partial Birth Abortion Ban'03 was passed, and upheld by SCOTUS in Gonzales v. Carhart, 550 U.S. 124 (2007), with majority opinion written by Justice Kennedy.

22/Other proposed federal legislation includes the Pain-Capable Unborn Child Protection Act ("Micah's Law"), seeking to ban late-term abortions nationwide after 20 weeks post-fertilization. The House successfully passed the bill in '13, '15 and '17.

23/However, Micah's Law has never passed the Senate, including as recently as January 29, 2018, where in a 51-46 vote, the bill failed to make it out of debate and to a final floor vote.

24/Several states attempted to pass Fetal Heartbeat Laws, ie ban abortions after the detection of a heart beat (usually 12 weeks, but as early as 6-7 weeks). AL, KS, KY, MI, OH, TX and WY have been unsuccessful in passing introduced legislation and/or legislation has been vetoed.

25/Legislation eventually passed in AR for a ban after 12 weeks, but was subsequently struck down as unconstitutional (no evidence of viability at 12 weeks) in Edwards v. Beck, Case 4:13-cv-00224-SWW (E.D. Ark. 2014).

26/Almost concurrently, ND passed a Fetal Heartbeat Law, but was similarly struck down as unconstitutional in MKB Mgmt Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), writ den'd, 136 S.Ct. 981 (2016).

27/Recently, IA passed its own Fetal Heartbeat Law, but the ACLU filed suit in Polk County District Court, and, at the July 1, 2018 hearing, the parties agreed to an injunction against the law taking effect pending litigation.

28/The fact is, the right to have an abortion has been determined as a personal privacy, which, while not specifically enumerated in the Constitution, is enshrined in so many facets of court precedence, including, but not limited to: marriage, procreation, contraception ...

29/ ... family relationships, and child rearing and education (see, eg, Roe, 410 U.S. at 152). A Constitutional textualist is not going to erase what it has consistently and repeatedly held "implicit in the concept of ...

30/ordered liberty." (Id. (quoting Palko v. CT, 302 U.S. 319, 325 (1937)). end/