The story so far: The U.S. Supreme Court on Friday ended the constitutional right to abortion, overturning the landmark 1973 Roe v. Wade decision that had enshrined a woman’s right to her body. In its ruling, the Conservative-dominated SCOTUS (Supreme Court of the United States) said, “The Constitution does not confer a right to abortion;… and the authority to regulate abortion is returned to the people and their elected representatives.” The 6-3 verdict echoed a draft opinion leaked in early May claiming that the SCOTUS would vote to strike down the right to abortion. Also overturned on Friday, was Planned Parenthood vs Casey, a 1992 case that upheld Roe. While anti-abortionists led by former President Donald Trump cheered the judgment, pro-choice advocates and women’s rights bodies decried the move, calling it a “horrifying decision with devastating consequences.” According to the Guttmacher Institute, an abortion rights advocacy research group, 26 states (of the 50) are certain or likely to ban abortion; and in at least 13 states, the ban comes into effect quickly.
How did it come about?
The Roe v. Wade judgment had struck down state-level abortion limits on a foetus before it is viable to survive outside the womb, which is considered to be the 24-28 week mark. On Friday, writing for the majority in the Dobbs vs Jackson Women’s Health Organisation, Justice Samuel Alito, a conservative appointed by George W. Bush, said: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey — now chiefly rely — the Due Process Clause of the Fourteenth Amendment.” The Due Process Clause of the 14th Amendment protects among other things, the right to marry, the right to use contraception and the right to abortion.
In 1969, a resident of Texas, Norma McCorvey, sought an abortion when she was five months pregnant and went to court because at that time the state of Texas had a ban on abortions except when it could be carried out to save a mother’s life. The pseudonym picked for her was Jane Roe, and it was called Roe v. Wade after the district attorney in Dallas, Henry Wade, the defendant in the case. In 1973, when the case reached the Supreme Court on appeal, SCOTUS ruled 7-2 to recognise abortion as a constitutional right in the U.S.
Following the Roe v. Wade judgment, there was a right to abortion in the first three months (trimester) of pregnancy; some limitations were placed in the second trimester; and in the third trimester, states could restrict or ban abortions as the foetus neared the point where it could live outside the womb except for cases in which the life and health of the mother were endangered. Later, in the 1992 Planned Parenthood vs Casey case, the SCOTUS rejected the ‘trimester’ system, but retained Roe’s “essential holding,” which established women’s constitutional right to abortions until the foetus was viable to live outside the womb.
There are nine judges in the U.S. Supreme Court, six of whom were appointed by Republican Presidents. Overturning the right to abortion was a campaign promise made by Mr. Trump, and during his four years as President, he appointed three justices — Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 — to give the SCOTUS a 6-3 conservative majority.
Why does it matter?
The U.S. on Friday joined three other countries — El Salvador, Nicaragua and Poland — that have rolled back abortion rights since 1994, according to the Center for Reproductive Rights. The Guttmacher Institute points out that years of research has shown that abortion bans severely impact people of marginalised groups who already struggle to access health care, including abortion.
In a statement, Michelle Bachelet, UN High Commissioner for Human Rights, said that the verdict represents a “major setback” for sexual and reproductive health across the U.S. The UN sexual and reproductive health agency (UNFPA) and the World Health Organization (WHO) noted that a staggering 45% of all abortions around the world are unsafe, making the procedure a leading cause of maternal death. The UNFPA said that it feared that more unsafe abortions will occur around the world if access becomes more restricted.
In a comment for The Conversation, Gretchen Ely at the University of Tennessee suggests this will put the U.S. on a similar path to Ireland between 1983 and 2018. She writes that the Irish law led to a prolonged period of suffering for many Irish women, documented in a series of court cases that helped turn the tide of opinion toward legalisation. These included the tragedy of Savita Halappanavar, a 31-year-old woman forced to miscarry an unviable foetus rather than terminate the pregnancy with medical assistance, which resulted in her death.
What happens next?
13 states have ‘trigger bans’ in place which means abortions are banned under most circumstances and come fully into effect with the overturning of Roe. Of the 13, Missouri was the first to invoke the ‘trigger law’ and ban abortion. Women who seek an abortion will have to travel to states where it is legal, making it an expensive proposition, not available to all. With mid-term elections due in November, the Democrats will lean on the abortion issue to urge pro-choice women to vote for them. But despite President Joe Biden’s appeal that the only way “we can secure a woman’s right to choose...is for Congress to restore the protections of Roe v. Wade as federal law”, he admitted that Congress “as it appears, lacks the vote” to pass that type of legislation.
Also, with Roe overturned, activists are already afraid that the judgment could have a domino effect on other rights like contraception and same-sex marriage.
