Overview:
On 3rd May, 2022, the United States of America was taken by storm when Politico broke a story leaking a draft of a majority opinion [1] from the Supreme Court of the United States of America, which effectively struck down one of the most significant legal precedents in the history of the country, Roe v. Wade. This opinion gutted the monumental 1973 decision passed in the very same court, which guaranteed federal constitutional protection of a woman’s right to abortion.
This decision was a crushing blow to women’s rights all over the country and reversed the country’s six decade progress. The repeal of this long-standing legal doctrine not only allows several states to outlaw all forms of abortions, but also puts the health and well-being of hundreds of thousands of women at risk.
This controversial landmark judgement by the Supreme Court was met with severely mixed reactions from opposing spectrums. The discussion on abortion, which was always a deeply polarizing issue in the United States, was once again at the forefront of the political and social sphere not just within the country, but around the world, which looked up to the United States as the torch-bearer for modern feminism.
The unprecedented leak of the first draft of a majority opinion by a sitting Supreme Court justice was met with furore and criticism from the American right-wing and the conservative justices of the Court alike, while the rest of the country was thrown in disarray and despair, fearing the ban on a woman’s right to bodily autonomy.
While the first draft doesn’t always end up being the final verdict on a case, on June 24th, 2022, the Supreme Court overturned, “Roe v. Wade” and “Planned Parenthood v. Kasey”, both of which protected the right to abortions, with a 5-4 majority.
History:
Roe v. Wade and Does v. Wade
In 1973, Sarah Weddington, an attorney, law professor, and women’s rights advocate filed 2 separate cases in a Dallas court, challenging the laws regulating abortion in the state of Texas. Does v. Wade was filed by Weddington on behalf of a married couple, where the woman had a neurochemical disorder which made childbirth a risk for her. The case aimed at making abortions legal in cases where it was medically necessary. However, the plaintiff wasn’t pregnant at the time and Weddington believed that a plaintiff who carried a child under similar circumstances would increase their chances of winning in court.
In June of 1696, Norma McCorvey became pregnant with her third child and wanted to get a legal abortion. Her presence was solicited by Weddington and a case was filed on her behalf in the U.S. District Court of the Northern District of Texas under the pseudonym “Jane Roe”.
The defendant in both cases was Henry Wade, the Dallas County District Attorney.
On 17th June, 1970, the Court unanimously ruled in favour of Jane Roe and declared the Texas law banning abortion unconstitutional.
The case reached the Supreme Court in the same year when both parties appealed. The plaintiffs made the case for the same based on an individual’s right to “liberty” under the 14th Amendment, claiming that the Texas law infringed on rights to marital, familial, and sexual privacy guaranteed by the Bill of Rights [2].
In their verdict, the Supreme Court concluded that abortion did indeed fall under an individual’s right to privacy. The decision was issued together with a companion case, Doe v. Bolton, which involved a similar challenge to Georgia’s abortion laws. The Court was sceptical of the state’s argument that Constitutional protections began at conception.
The 7-2 verdict in favour of Jane Roe stated that criminalizing abortions would infringe a pregnant woman’s right to privacy in multiple ways, stating that having unwanted children “may force upon the woman a distressful life and future”; it may bring imminent psychological harm; caring for the child may tax the mother’s physical and mental health; and because there may be “distress, for all concerned, associated with the unwanted child”.
The Court also rejected the notion that the right to privacy was absolute and that a woman’s right to abortion needed to be balanced against other government interests, such as protecting maternal health and protecting the life of the fetus. The Court hence justified the existence of reasonable restrictions on a pregnant woman’s right to choose an abortion.
Planned Parenthood v. Casey
Another landmark case related to a woman’s constitutional right to abortion was Planned Parenthood v. Casey [3]. This landmark judgement of 1992 reaffirmed the central holding of Roe, broadening the justification of liberty to include liberty to choose concerning family life, and also protection from legal enforcement intended to maintain traditional sex roles. The court also ruled that a foetus was now viable at 23 or 24 weeks rather than at the 28-week line from 1973.
Dobbs v. Jackson Women’s Health Organisation
This case aimed at challenging the legality of Mississippi’s “Gestational Age Act” of 2018, which had banned abortions after 15 weeks except for medical complications or fetal abnormalities. The state’s only abortion clinic, Jackson Women’s Health Organization, filed a suit against the act stating that it violated the 24-week foetus viability established in previous precedents. The Court certified the petition on 17th May, 2021, limited to the question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional”. [4]
On June 24th, 2022, the Court ruled 6-3 in favour of upholding the act which federal courts had previously enjoined, and voted 5-4 to overrule Roe v. Wade and Planned Parenthood v. Casey.
Overturning Roe v. Wade:
Nearly seven decades since Roe v. Wade was passed in the Supreme Court and established as an integral legal precedent for women all over the country, the conservative faction of the Supreme Court of the United States overturned this long-standing verdict much to the horror of women across every state. Five hard-line conservative justices voted to overturn Roe v. Wade. Three of those five were nominated under the controversial leadership of former President Donald Trump. Two of those justices have been accused of sexual assault and are being accused of lying under oath in their testimonies to the U.S. Senate, wherein, they stipulated that they would not vote to overturn Roe, stating that it was a long standing precedent of the Supreme Court.
In the majority opinion, Justice Samuel Alito wrote that Roe and all subsequent rulings based on it needed to be overruled because it was “egregiously wrong”, the arguments “exceptionally weak” and so “damaging” that they amounted to “an abuse of judicial authority” [5]. Alito cherry-picked quotes from previous verdicts to make his case about abortion not being a constitutionally recognized right while justifying the majority opinion to overturn Roe.
In his opinion, Alito proclaimed that abortion rights were to be decided by elected representatives at the state and federal levels. “We hold”, he wrote, that “the Constitution does not confer a right to abortion”. Establishing the standard which the courts should apply if state regulation is challenged, Alito stated in his opinion that any state regulation of abortion is presumptively valid and “must be sustained if there is a rational basis on which the legislature could have thought” it was serving “legitimate state interests”, including “respect for and preservation of prenatal life at all stages of development”. In conclusion, his opinion gives states unilateral control to ban all forms of abortion under any circumstance with no exceptions if they choose to.
In a concurring opinion, Justice Clarence Thomas wrote that landmark high court rulings that established gay rights and contraception rights should be reconsidered now that the federal right to abortion has been revoked claiming that these rulings were “demonstrably erroneous decisions” [6]. This chilling opinion might be forecasting an even scarier situation wherein LGBTQ+ rights and women’s rights may be in grave danger.
Consequences:
Federal Action
After the Supreme Court overturned Roe v. Wade, President Joe Biden issued an executive order on 8th July, 2022 in an attempt to protect women’s health and access to reproductive care [7]. Biden also advised doctors that they would be protected under federal law in case they performed an abortion in unavoidable circumstances, even in states with extremely strict laws. The current administration has also pledged support to women who wish to travel across state lines to get an abortion if required, as well as increased financial support in case of an unplanned pregnancy.
The Biden administration as well as Democrats in Congress have already announced their plans to propose bills to codify access to abortion, but they are facing fierce opposition from pro-life Republicans who plan to thaw at all attempts made by the Democrats. At the same time, any sweeping action by the Executive Branch would be struck down by the Supreme Court on the grounds of executive overreach. The White House legal team is looking at long-drawn legal battles and flak if they choose to implement drastic measures to protect abortion rights which are currently under the jurisdiction of state governments only.
State Laws
Anticipating the verdict overturning Roe, several states have paved the path to banning all forms of abortions by having in place “trigger bans” which are new laws pushed by pro-life legislators in many states [8]. Nearly fifteen states across the midwest and south already have such laws in place that are now being implemented stringently. Some states are moving swiftly to ban abortion.
According to a new analysis by the Guttmacher Institute, Louisiana, Kentucky, and South Dakota already have laws in place that lawmakers have crafted explicitly to come into law immediately after the overturn of Roe [9]. Idaho, Texas, and Tennessee – Republican-ruled states where most abortions are illegal after six weeks of pregnancy – have similar trigger laws, which would be imposed thirty days after Roe is struck down. Seven other states need approval from the executive branch such as the governors or the attorney generals to implement these trigger bans. In the past decade, many states also have passed gestational bans prohibiting abortion at various stages of pregnancy, similar to the Gestational Age Act of Missippi which led to the death of Roe v. Wade. Federal courts had effectively blocked many of these proposed laws in response to legal challenges, including laws in states like Georgia, Ohio, and Idaho that ban abortions after six weeks of pregnancy. With Roe overturned, these laws take effect in the states. So too could a law recently enacted in the state of Oklahoma, which makes performing an abortion a felony punishable by time in prison.
Several other restrictions could impose where, by whom, and under what situations abortion can be legal. Some examples include laws requiring parental notification or consent for abortions involving patients who are minors; and other health regulations for doctors and clinics that many medical groups say are unnecessary, expensive, and difficult to comply with. This could also mean a rapid increase in the rate of abortions performed illegally under improper or no supervision that could seriously endanger the lives of the patients. The overturn of Roe marks archaic laws that date back nearly seven decades being passed again and the complete denial of a woman’s right to bodily autonomy.
Public Perception:
The United States continues to remain divided on the issue of a woman’s right to abortion. This deepening divide over the years has led to the development of the “pro-life” and “pro-choice” factions in the country. The hard-line conservatives and evangelicals continue to protest abortions stating that it goes against their religion and claiming that life begins at conception rather than birth. This faction goes so far as standing outside abortion clinics, hurling abuses and accusations at patients, while they walk in circles demonstrating their staunch opposition to abortions. Every year, on the anniversary of Roe v. Wade, opponents of abortion rights marched up in front of the Supreme Court with the “March for Life” slogan. The attendance of this march only increased every year.
The pro-choice faction is further divided. One section of people believe that the right to abortion is absolute and comes under reproductive justice. These advocates have claimed that Roe didn’t go far enough and that abortion should be codified in law. They believe that while Roe was based on a person’s civil right to privacy, abortion comes under a woman’s fundamental rights in terms of her reproductive freedom. Others, while supportive of abortion rights in some cases, still believe that abortions should be restricted to special cases only. A January 2022 CNN poll [10] found that 59% majority of Americans wanted their state to have laws that are “more permissive than restrictive” on abortion if Roe was overturned, 20% wanted their state to ban abortion entirely, and another 20% wanted it to be restricted but not banned.
Political Positions:
The lines are less blurred when it comes to the opinions of political parties on abortion rights. Democrats continue to be fervent supporters of expanding women’s rights to abortion access. The overturning of Roe was met with sheer outrage and anger from Democrats. The Speaker of the House lambasted the Supreme Court for “ripping away women’s rights to make their own reproductive health decisions”, blaming the conservative supermajority appointed by the former President and former Senate majority leader Mitch McConnell [11]. President Biden and Vice President Kamala Harris were also quick to denounce the ruling made by the Supreme Court, calling it a huge loss for women’s rights and promising to take executive action on the same.
Meanwhile, pro-life Republicans rejoiced as the Court overturned Roe v. Wade, with House Minority Leader Kevin McCarthy calling it the “most pro-Life ruling in American history”. Other Republicans acted swiftly to ban abortions, with no exceptions whatsoever in several cases. This political divide between the two parties is guaranteed to make abortion rights one of the fieriest issues in the midterm elections scheduled in November 2022 where the Democrats are looking to keep their narrow majorities in both, the U.S. House of Representatives and the Senate. The Democrats have already made it clear that the only way to protect the right to abortion is by electing pro-choice lawmakers who would vote to pass legislation to make legal abortions the letter of the law.
Aftermath:
Women’s rights have received a huge blow with the overturning of this crucial judicial verdict, and experts state that this means that women in the 21st century have fewer rights as compared to the previous three generations, setting the country back in time. The war for legal abortions, which were accessible to all women, has been long-drawn and polarizing for decades, but this recent development marks a major loss for all women. But while this loss is a devastating blow, it has reinvigorated women’s rights activists, trans rights activists, politicians, and the public across the country. The first step to re-establish abortion rights would be Democrats making headway in the midterms to establish a majority which can enact federal legislation. Will women have access to safe and legal abortions in the United States of America anytime soon? Only time will tell.
Article by:
Kshitij G. Saha,
Vice President,
PES MUN Society, RR Campus
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