When a democracy rolls back a constitutional right that has been in place for almost half a century, it must consider itself in deep peril. The U.S. stands at that fraught juncture now, after its Supreme Court, in a 6-3 majority, overturned the 1973 ruling in Roe vs Wade, and took away the constitutional right to abortion. In one blow, on June 24, it withdrew from women anywhere in the country their right to reproductive and bodily autonomy. With Roe, as well as the 1992 decision in Planned Parenthood vs Casey that upheld Roe, gone, the court returned “the issue of abortion to the people’s elected representatives”. States can now decide whether to ban abortion, and at what stage in a pregnancy and under what circumstances. The fight over abortion has been the U.S.’s most passionately waged ideological battle. With a focus that denies any space for compassion or respect for liberty, conservatives have prioritised the task of having Roe overturned for decades. With the court now having attained a conservative supermajority, the decision had been imminent — some Republican-ruled States have started banning abortion, with trigger laws in place in anticipation of such a judgment. Other Red States will follow.
This Supreme Court decision, Dobbs vs Jackson Women’s Health Organization, has in effect divided the U.S. territorially — States where women have the right to abortion, and those where they do not. Where they do not, women with unplanned or unwanted pregnancies, including possibly in some jurisdictions those that endanger the mother’s life or are a result of rape or incest, may have no option but to seek medical assistance in other States. This needs resources and support structures, and many women will be left with no option other than clandestine, unsafe abortions nearer home. Chillingly, there is fear that miscarriages could be subject to criminal investigations. On a positive side, major U.S. companies and some States (New York) have started offering financial support to employees and help for out-of-state abortion seekers who seek medical interventions in abortion-supporting States. This will, however, make already-bitter partisan polarisation worse. It must also alarm Americans that the logic of Dobbs — that abortion is not mentioned in the U.S. Constitution and is not covered by the landmark 14th Amendment of 1868 that safeguards liberty — has opened the process for other rights to be taken away. For now, President Joe Biden and his Democratic Party have vowed to put Roe on the ballot in November’s mid-term elections. But the way the U.S. electoral system stacks up the numbers in the Senate against their efforts to break the filibuster, the effort to protect women will likely be carried out incrementally: legal challenges at multiple levels, support to women in Red States, and persuasive political campaigns at the grassroots.