In 2022, many women across the United States were sent into a state of panic as the Supreme Court overturned Roe v Wade, a cornerstone of women’s rights in the USA.
For those of you who are less familiar with the American judiciary, the Supreme Court of the United States (SCOTUS) is the highest in the United States. Usually, it deals with appeals on points of law that may concern the US Constitution. There are 9 Justices in total and each Justice holds office for life and is appointed by the current President of the United States.
Donald Trump, the former President who had already appointed 3 Justices to the court in his last term, could potentially appoint more in his upcoming term as President of the United States. Currently, the Supreme Court of the United States consists of 6 right-leaning Justices and 3 more left-leaning Justices, reportedly the most conservative Supreme Court in modern US history.
In this blog post, I would like to shed some light on a very controversial SCOTUS ruling that took the US and the rest of the world by storm: the overturning of Roe v Wade.
The history of the right to abortion in the USA
The controversial decision to overturn Roe v Wade went absolutely viral as women stood together, scared the right to abortion would be stripped from their state. We all remember the backlash this decision had and how it is still talked about and affects many women in states that have now implemented abortion restrictions or bans. The importance of this subject, which stems from the jeopardy put on women’s healthcare and the restriction of their bodily autonomy, warrants a further look into the shocking decision by further exploring the facts of Roe v Wade and how it was overturned.
Roe v Wade was a case brought in front of the Supreme Court in 1973 by a woman under the alias of “Jane Roe” against Henry Wade, the district attorney of a county in the state of Texas. The case challenged Texan anti-abortion laws; specifically Articles 4512.1 to 4512.4 of the Texas Penal Code, criminalising the procuration of “a miscarriage to any woman being with child.” and Articles 1191 to 1196 of the 1925 Texas Criminal Statutes, which criminalised abortion in most cases except when the life of the mother was in jeopardy.
Roe argued that these laws were unconstitutional under the fourteenth and Ninth Amendments of the US Constitution which proclaimed the right to privacy. The point was that the right to privacy encompassed pregnancy as a matter the states could not control through laws. The ruling was 7-2 in favour of Roe, affirming that abortion was a constitutional right.
It was in Dobbs v Jackson Women's Health Organization (2022) that the case law constitutionalizing the right to abortion was overturned. This case challenged the 2018 Mississippi law that criminalised abortions post-15 weeks. And although smaller courts ruled against the law on the principle that abortions should only be banned after fetal viability, the ability for a fetus to survive outside the uterus, as affirmed in Planned Parenthood v Casey (1992), the appeal in the Supreme Court was successful with a 5-4 ratio ruling to overturn Roe and Casey and a 6-3 decision to maintain the Mississippi law. The legal basis pertained to the right to abortion not being explicitly stated in the Constitution, thus the Justices affirmed that the US case law sanctified a right that was never constitutional to begin with.
The debate on the constitutionality of the right to abortion
In Roe v Wade, Justices took a legal realism approach to interpreting the US Constitution. Although the Constitution does not explicitly set out the right to abortion per se, it may be interpreted in the definition of the right to privacy: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. The Fourteenth Amendment affirms the right to privacy as outlined in the Roe v Wade discussion, and could be interpreted as a right falling under the right to privacy as outlined in the Fourteenth Amendment.
It is also argued by Roe that the ninth amendment of the Constitution protects the right to abortion: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”. When drafted as part of the Bill of Rights, the Ninth Amendment was given the purpose of protecting all rights that were not explicitly named in the Constitution so as to give them still constitutional legitimacy. However, it is up for debate whether the right to abortion can indeed be considered a fundamental right or if the right to life takes precedence, rendering a clear conclusion difficult and highly dependent on held values.
A legal realism approach, as taken in Roe v Wade, could very well lead us to include the right to abortion as a fundamental right that is included, although implicitly, in the Constitution. However, it is understandable taking a formalistic approach to conclude that the right to abortion, as it is not outlined or named explicitly in the Constitution that it is not specifically included. Both are reasonable paths to take when analysing the legal issue and both warrant serious consideration. These approaches are clearly shown in the wildly varying decisions between Roe v Wade and Dobbs v Jackson.
Concerns following the recent election results
After the overturning of Roe v Wade, enabled by Trump’s conservative Justice picks during his time in office, many women fear how the upcoming government will tackle women’s rights. Many believe that Trump, a man who has made countless concerning and sexist remarks towards and about women and who has been found liable by a jury for sexual misconduct, is not a step in the right direction for women and protecting their rights. Even more so as the effects of his former presidency, with his Justice picks tipping SCOTUS to conservative views, are still very much being felt. Suggestions to reconsider other due process precedents have been made as a result of the “egregiously wrong” interpretation of the Constitution in Roe v Wade, in the words of Justice Kavanaugh. One of the precedents that could be scrutinised by SCOTUS is same-sex marriage, a milestone achievement only established in US common law in 2015 through the ruling in Obergefell v Hodges. This threat is rightfully worrying to American citizens and would be an even larger step backwards for equality.
We have already seen some devastating cases of women suffering tremendously due to the overturning of Roe v Wade. Amber Nicole Thurman, a 28-year-old woman living in Georgia, was denied care until it was too late. She had taken abortion pills but complications had arisen, with parts of the fetal matter remaining in her uterus. Under normal circumstances, the surgery she would have needed would have been routine. However, a recent law had passed in Georgia that disallowed this surgery from being performed. Hospital staff had to wait until her life was at risk to medically intervene. By that time, it was too late for her.
In recent news, healthcare providers in the US are noticing increased interest in the acquisition of abortion pills and birth control, with many customers buying in bulk to potentially stock for the coming years. Similarly, Planned Parenthood has reported more inquiries in the future of access to abortion and other similar issues which are on the minds of many, the New York Times reports.
Regardless of personal political beliefs and feelings on the US elections, it is clear that the threat to abortion rights in the remaining states that uphold them is very real. Some of the States that still offer full access to abortions are moving towards legislation to further protect their abortion laws such as New York and Maryland, in apprehension of the upcoming government.
*image courtesy of Britannica.com
Antonia James-Cameron
First-Year, English & French Law
Comentários