What next after the end of Roe v Wade?
By JHANVI MEHTA
Protests took place outside the Supreme Court as a result of the decision.
On Friday 24th June, the United States Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood, stripping away the constitutional right to abortion that has been upheld since 1973. This far-reaching verdict that declares the constitutional right to abortion is now non-existent effectively jeopardises the reproductive rights of millions of American women.
In 1973, the Supreme Court had ruled through Roe v. Wade that pregnant women had the legally protected entitlement to receive an abortion during the initial three months of their pregnancy, whilst permitting legal constraints on abortions following this period of the pregnancy. The reversal of Roe by the court has meant it is essentially conceivable for individual states to outlaw abortions earlier than three months. Whilst this ruling will not immediately make abortions illegal outright in the United States, the Supreme Court has provided individual states with the discretion to decide on whether abortions should be allowed, and how they should be permitted.
This decision was initially leaked in early May, with Justice Samuel Alito writing on behalf of the court majority in favour of overturning Roe. He reiterated that the decades-long upheld right required overruling as it was “egregiously wrong” and was equated to “abuse of judicial authority.” Alito’s majority opinion was supported by Justice Clarence Thomas, and the three Trump appointees to the Supreme Court - Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts, appointed under President George W. Bush, is notable for mediating ideological divisions on the Supreme Court. Justice Gorsuch declined to say how he would rule on Roe, stating that the verdict was “a precedent of the US Supreme Court that had been reaffirmed.” Likewise, Kavanaugh refused to explicitly state whether the decision was the correct one to take.
However, Roberts failed to convince his conservative justices to prevent the termination of a woman’s right to abortion. Roberts himself stated he would have upheld Mississippi’s 15-week abortion ban without the reversal of Roe v. Wade, and said that he would have waited to deliberate on whether the imposition of tough restrictions on abortion were constitutional. Furthermore, he criticised the court’s majority opinion to reverse this precedent as a “serious jolt to the legal system” and urged the exercise of “judicial restraint.” Roberts thus attempted to locate a middle-ground on a historic abortion ruling through siding with his conservative counterparts in support of Mississippi’s 15-week abortion law, whilst opposing the decision to reverse Roe v. Wade with the three liberal justices on the court (Elena Kagan, Sonia Sotomayor and Stephen Breyer). This approach fails to take a concrete defence of the right to abortion for many American women, but is also a standalone stance adopted on the US Supreme Court; leaving Roberts to be divorced from liberal and conservative justices on the court.
Now officially struck down, abortion rights will be almost instantaneously rolled back across the nation, with 26 states definitely set or likely to introduce fresh abortion restrictions or outright bans. Multiple states have legislated “trigger laws” that will be enforced as Roe is overturned, with some having codified laws dating prior to 1973 in the instance Roe is struck down. These could now make a return. Parts of the South and the Midwest are particular areas of concern where abortion is expected to face bans and severe limitations, potentially compelling patients to manage abortions themselves or travel out-of-state.
The Guttmacher Institute, a research organisation that advocates for abortion rights, has estimated that approximately 40 million women that are capable of child-bearing will reside in states where abortion will now be incredibly difficult to access. Additionally, these bans will lead to an estimated 60,000 births a year amongst women unable to get an abortion, impacting approximately 41% of women who are able to reproduce, and particularly women of colour who are marginalised and economically disadvantaged. These figures imply that abortion will be unavailable to a significant number of women across the country. Further, this verdict will make abortion a symbol of class privilege; where women who are affluent with higher levels of economic resources will find it easier to travel out of state to seek an abortion.
Moreover, the wake of the decision on national abortion rights is highly likely to be a pivotal issue in the upcoming midterm elections, possessing heavy political implications. President Biden has implied that the decision could emphasise new restrictions in other realms such as access to contraceptives and same-sex marriage, which would ultimately lead to a violation of the constitutional right to privacy. He stated: “This fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality. They are on the ballot."
Clarence Thomas’s opinion overtly persuaded his fellow justices to “reconsider all of this court’s” rulings and cases that have upheld the rights to gay marriage and sex (Obergefell v. Hodges) and contraceptives. This is a regressive step that will endanger the social equality achieved in the United States to this date. Stalling the federal right to abortion will consequently jeopardise the lives of pregnant women, and outlawing abortions will only make them more dangerous.
The US Supreme Court has been engulfed by a Trumpian lens of analysing the law, increasing the likelihood of women dying from illegal abortions; all resulting from the overturning of Roe v. Wade. The ruling has proved that the forces of power are controlled by unelected lawmakers and arbiters of the constitution, to the detriment of those who possess a uterus. The sexual autonomy and rights of American women have been compromised as a commodity that can be snatched away at any moment of time when politically convenient for a Justice. American women being granted abortion rights has never been allowed to be celebrated; the defence of abortion rights has drained and consumed how women live their lives. Eviscerating Roe v. Wade endangers every American that participates in sex and menstruates, and every individual that upholds and appreciates the constitutional right to privacy.
Image: Flickr / Victoria Pickering