Roe vs. Wade

POLITICS Roe vs Wade: The Big Questions

The beginning of May saw a seismic shift in politics. No, I’m not talking about the results of the UK local elections (a bloody nose for the Conservative Party, but not fatal for the Prime Minister). Instead, I’m looking across the pond to the US where a leaked draft ruling from the US Supreme Court indicates that the court is likely to overturn a landmark ruling from 1973 which enshrined women’s rights to terminate a pregnancy in the USA. That ruling is known as “Roe vs Wade”. What is Roe vs Wade?

This famous case revolved around a lady named Norma McCorvey – known for the purposes of the case as “Jane Roe” – who became pregnant with her third child in Texas in 1969 but was unable to access abortion care after it was banned in her state. Her lawyers filed a lawsuit on her behalf in federal court against her local district attorney, Henry Wade (hence ‘Roe vs Wade’) alleging that the state’s abortion laws were unconstitutional. The US District Court for Texas ruled in her favour, and the case was then sent to the Supreme Court following an appeal where the case was also found in favour of Ms McCorvey. The court’s decision was that choosing to have an abortion is ultimately an issue of Americans’ right to privacy, which they ruled was an element of the liberty guaranteed by the 14th Amendment of the US Constitution. Then, as now, advocates opposing abortion attempted to argue that life begins at conception. The court disagreed, ultimately saying that the US Constitution’s use of “person” in establishing inalienable rights did not represent foetuses. The ruling from Roe v Wade established federal protections for women who wish to have an abortion. The decision ultimately gave women total autonomy to terminate a pregnancy during the first trimester and allowed some state influence over abortions in the second and third trimester. The ruling determines that the US Constitution protects a woman’s right to an abortion without excessive government intervention. A 1992 Supreme Court ruling in another significant case - Planned Parenthood v Casey - upheld the Roe ruling and prohibited any legal constrictions that put an ‘undue burden’ on abortion access.

What has changed?

The Roe ruling effectively repealed laws that banned abortions outright, and sparked decades of religious and moral conflict over women’s bodies. The American ‘right’ has committed for decades to overturning Roe. It seems that they may now have their chance. For readers who don’t take Politics, a quick note at this point. The US Supreme Court is made up of nine ‘justices’ appointed for life by the President of the United States. Traditionally, a Republican president will appoint justices with conservative and right-leaning values whilst a Democratic president will appoint justices with more socially liberal values. This quirk of the American system allows the President to influence the make up of the most senior part of the US judiciary, something we find difficult to comprehend in the UK. During Donald Trump’s time as President, he appointed three new justices with the most recent addition to the Supreme Court, Amy Coney Barrett, bringing the high court’s conservative (right leaning) balance to six against three. The US Supreme Court is currently considering a ruling in a Mississippi case (Dobbs v Jackson Women’s Health Organization) which would introduce a ban in that state on most abortions after fifteen weeks of pregnancy, presenting a major challenge to the landmark precedent established in the 1973 ruling in Roe v Wade. This case marks the first major abortion rights challenge in front of the new conservative majority on the Supreme Court with its three newest, conservative, and Donald Trump appointed justices. An unprecedented, leaked draft document from conservative Justice Samuel Alito – first reported by Politico – indicates that the court’s conservative majority will vote to overturn Roe and Casey. His opinion is very clear… “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.” There are at least twelve US states with so-called “trigger laws” that would ban abortion immediately should Roe be overturned, and at least 26 states that are likely to ban abortion quickly should that power return to individual states. This could eliminate abortion access across more than half the US and force many pregnant women to carry their pregnancies to term unless they can travel to a handful of states with abortion protections in place.

Why is this significant?

Putting aside the politicisation of the judiciary and the way the highest court in the land in the USA can be manipulated by the politics of the President, Brittany Leach from the LSE feels that the implications are broad and troubling. She believes that, whilst each state would have broad authority to set abortion policy, including banning abortion, some language in the draft raises questions about whether future rulings could go even further, perhaps establishing foetal personhood or foetal citizenship, thereby removing abortion protections in all states. Furthermore, she believes several arguments in the draft opinion raise the spectre that the court will further dismantle the rights of women, people of colour, LGBTQ+ people, and others. For instance, Justice Alito argues that rights can only be considered implicit in the Constitution if such rights are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”. Judging whether a right is legitimate based on how recently it was won is a terrifying prospect for women, African Americans, queer people, and others whose rights are not “deeply rooted” in a country with a long history of patriarchy, structural racism, bigotry against LGBTQ+ people, and so on. Leach believes that Justice Alito’s argument that abortion is not mentioned in the Constitution is especially worrying given the many other cases that rely on privacy rights to establish rights for marginalised people. These rights include: the right to use birth control, the right to interracial marriage, the right to gay marriage, and many more. Indeed, even the idea that women should receive equal protection under the law seems at risk, as the first case applying the Equal Protection Clause of the 14th amendment to ban sex discrimination was decided only a few years before Roe. If this seems alarmist, Leach points to the fact that the US is one of the few developed countries that has not ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Recent attacks in the US on voting rights and LGBTQ+ rights – especially trans rights – likewise give cause for concern. While many in the US are hoping that the Supreme Court will not see fit to dismantle wide-ranging rights protections for women and other marginalized groups, fears that this marks the beginning of an era of rights rollbacks, rather than a single exceptional decision, are not unwarranted.

What happens next?

The Supreme Court makes its final decision in June. If it follows through with its initial decision to overturn Roe v Wade, 26 states are certain or likely to move to ban abortion. If that does happen, pro-choice groups will be placing their hope in the hands of state governors. An interesting aspect of the US system is that State Governors have a large amount of power and can, in certain circumstance, overrule decision by the state legislature. The prospect of Roe being overturned is now therefore affecting the elections for state governors, particularly in states with Republican-led legislatures that would probably move to ban abortion unless a Democratic governor steps in. Democratic candidates are now stressing the urgency of the moment to voters, portraying themselves as the last line of defence against an abortion ban in their states. Christina Amestoy (Deputy Communications Director at Democratic Governors Association) has stated that… “The reproductive freedoms of millions of Americans are on the line. Electing Democratic governors is our best and perhaps only hope of protecting them.” Time will tell.

Whatever your personal view on abortion, this case gives an interesting insight into both the American political system, the continued polarisation of politics there, and the power and influence of ultra-conservative and fundamentalist section of American society…views many of us with socially liberal views find difficult to understand. It also demonstrates that the legacy of Donald Trump may live on long after his term in office came to an end.