NJ abortion laws will hold up against potential ‘Roe’ reversal, but the future is murky

Legislation signed in January codifies one's right to an abortion in New Jersey, but the laws would not withstand a future federal ban on abortion.

This week, Politico obtained a leaked draft majority opinion indicating the U.S. Supreme Court will reverse abortion rights granted by the landmark 1973 Roe v. Wade decision and confirmed by subsequent court cases.

It’s a shocking development; though not entirely unforeseen—those on the left were told Roe v. Wade, among other things, was at risk, if they couldn’t suck it up and vote for Hilary in 2016. Lefty skeptics brushed it off as a political ploy, but Trump won, he got three conservative Justices on the Court and here we are. As if there were any doubt, Clinton herself noted Kavanaugh would overturn Roe during the Justice’s confirmation hearings in 2018.

Of course, a lot can happen between now and when the Court formally rules on the issue, but experts suggest the outcome of the decision—a response to several cases—is unlikely to change. In the draft majority opinion, Justice Samuel Alito writes, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” It’s unclear if the decision is supported by five or six of the Justices at this time; either way, it’s a majority.

Thirteen states have automatic “trigger bans” on abortion that will take effect when and if the Supreme Court overturns Roe. Another dozen or so are likely to ban abortion after the federal mandate is lifted (…if it’s lifted).

New Jersey is not one of these states. Gov. Phil Murphy signed legislation earlier this year that enshrines one’s right to an abortion in state law. Despite claims from anti-choice folks, the bill does not require insurance companies to cover abortion outright.

Now, even though New Jersey has codified the right to abortion in their state laws, it doesn’t mean we ought to assume it’ll be allowed forever. As Harvard law professor Lawrence Tribe points out on Twitter: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.”

Democrats are mobilizing to pass federal legislation allowing abortion, but they face steep opposition. Theres no indication they’ll be able to earn the required 60 votes for a measure in the Senate, and if they were to blow up the filibuster, thus lowering the bar to 50 votes, there’s no guarantee they’ll be able to win unanimous support among their party. But the intention to fight is strong from those in New Jersey.

Murphy issued a response on May 3, saying, in part: “If a right-wing Supreme Court cannot recognize this simple truth, our elected officials in Washington must take matters into their own hands. Congress must immediately pass federal legislation protecting the reproductive rights of all Americans, everywhere across this nation. If that means reforming the filibuster, then we need to reform the filibuster.”

Says ACLU-New Jersey Executive Director Amol Sinha: “We in New Jersey are prepared to fight back against attacks on essential freedoms through every means available, including our legal system, the political system, and grassroots people power.

“At this moment, with the right to abortion still in place, we must build our collective power and remain undeterred in protecting our fundamental rights and freedoms,” continues Sinha. “We will face these threats, which are deeply rooted in systemic racism, and remain undaunted in our fight to strengthen our most essential freedoms and preserve the autonomy we’re all entitled to exercise over our bodies and our lives.” 

In a condemnation of the leaked Supreme Court majority opinion, the New Jersey Chapter of the National Organization for Women called on voters to elect a strong majority of legislators who believe in abortion rights.

“Abortion bans have little to do with protecting women’s health or anyone’s life. They are about control and the power politicians want to retain over women’s lives and their future. Forcing women to give birth is dystopian and straight out of the Handmaid’s Tale,” said Anjali Mehrotra, president of NOW–NJ. “The Supreme Court’s rulings on restrictions on abortion, voting rights, LGBTQIA+ rights, marriage equality and contraception, are harmful, dangerous and hateful. They are nothing short of an outright attack on our Black, brown, and LGBTQ+ communities and economically insecure women who are most at risk. It is imperative that we take all steps necessary to protect New Jersey’s women and families.”