The Likely Repeal of Roe v Wade: Fuelling the Conflict Between Pro-Choice Abortion Rights Activists and Pro-Life Campaigners in the United States
A first-draft majority opinion of the US Supreme Court, circulated for in-house comments on 10 February 2022, was leaked to the wider world on 3 May by Politico, a “customised policy newsfeed and intelligence platform”, encouraging speculation that the conservative-dominated judicial body would almost certainly vote to overturn Roe v Wade by July 2022. The repeal of Roe v Wade will allow thirteen American states to pass “trigger laws” to ban abortion within their jurisdictions and a further five states to reinstate abortion bans that were never removed from their statute books. The 98-page document, verified as authentic by Chief Justice John Roberts, is the work of Associate Justice Samuel Alioto, one of six Republican-appointed judges sitting on the nine-member Supreme Court bench. On reading through the draft opinion piece, it appears that the Supreme Court would prefer to devolve any decisions about abortion rights back to the court of public opinion, within individual states, in place of federally imposed restrictions originating in the nation’s highest court of law.
The Supreme Court’s deliberations followed a challenge to the state of Mississippi’s ban on abortions after 15 weeks in the case of Dobbs v Jackson Women’s Health Organization. According to the leaked document, the Roe v Wade judgement was “egregiously wrong from the start” and needed to be “overruled,” as the “Constitution makes no reference to abortion”. It also recommended overturning the ruling in Planned Parenthood v Casey, which prevents states from placing an “undue burden” on women seeking first trimester abortions, before foetal viability outside the uterus, around 24 weeks after conception.
On 22 January 1973, the US Supreme Court ruled 7-2 in the case of Roe v Wade that every woman in America had the constitutional right to obtain an abortion during the first three months of pregnancy and also conferred limited rights to abortion in the second trimester. At the time of this ruling, thirty states banned abortions at all stages of pregnancy. The Court also decided that a woman’s right to an abortion was protected by a clause of the Fourteenth Amendment to the US Constitution, which guarantees the right to privacy by restricting the choice of an abortion, although the leaked draft counters this argument by stating that, at the time of adoption of the Amendment, abortion at all stages of pregnancy was a crime in three-quarters of all states. Norma McCorvey, alias Jane Roe, only revealed her true identity in 1989. She had sued Dallas District Attorney Henry Wade in 1969, seeking to overturn a Texan law prohibiting abortion, and chose anonymity to keep out of the public eye. The ruling came too late for her, as she gave birth to her third child two and a half years before the ruling came through. It was just as well, as she had a subsequent change of heart and became a pro-life activist.
Before Roe v Wade, unintended pregnancies either ended up in illegal abortions, sometimes with deadly consequences, or more often progressed to forced adoptions, creating a generation of maladjusted children, deprived of their true identities and troubled in adult life by low-esteem, occasioned by feelings of rejection and neglect and experiences of childhood abuse, both physical and sexual.
Roe v Wade faced many challenges right from the outset. The Hyde Amendment of 1976, introduced by Representative Henry Hyde (Republican, Illinois), removed Medicaid cover for all abortions that were not medically indicated; rape-induced pregnancy was later added to the list of abortions eligible for public funds. This amendment disproportionately affected the poor, people of colour, and the disabled.
The 1992 US Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v Casey upheld the Abortion Control Act in Pennsylvania and ruled that the state could impose some restrictions of its own on abortions, provided these did not impose an “undue burden” on pregnant women seeking an abortion during the first and second trimesters. Third trimester abortions were only permissible when necessary to protect the health of the pregnant woman. The precise distinction between “due” and “undue” burden was, however, left to conjecture.
Over time, several “red” (Republican) states have introduced several barriers to abortion, such as mandatory waiting periods to allow for a change of mind as part of informed consent bills, parental notification and consent requirements for minors, bans on medication abortions, bringing forward the gestational age at which abortions are still legal, and restricting who can perform abortions. Restrictions on abortion providers meant that most abortion clinics in Texas were forced to close after passage of the Texas Omnibus Abortion Bill (HB 2), which mandated all providers to have admitting privileges at local hospitals, something which most hospitals were disinclined to agree to, for legal or ideological reasons. In a post-Roe v Wade America, individual states will once again be free to reimpose abortion bans if they should so decide.
There is a continuing, and yet unresolved, debate over whether “life” can be considered to begin at the time of conception or to coincide with the onset of the fetal heart beat at five to six weeks of gestation. It is also not known for certain when a fetus becomes a sentient organism, capable of feeling pain, with anti-abortionists claiming foetuses feel pain from 20 weeks or even earlier, while the scientific consensus favours the later time of 26 to 28 weeks after conception. The belief that “personhood” begins at the moment of conception, and the view that the sanctity of life must not be violated at any cost, have led pro-Life activists to demand a total ban on all abortions throughout the US and to ensure that foetuses are guaranteed a right to life under the Constitution.
Whatever one’s view about the morality of abortions, there can be no denying that legalising procedures for terminating pregnancy have made the process much safer, as compared with the days of illicit “back-street” abortions, performed by lay persons at home, or by untrained operators in unlicensed clinics. In comparison, maternal deaths from botched abortions remain common in Latin America and the Caribbean basin, which have the strictest abortion laws in the world. For example, around 900 pregnant mothers were killed in the region in 2014 by unsafe abortions, carried out by untrained providers, accounting for 10 per cent of all maternal deaths.
First trimester abortions, at 6 to 12 weeks, can be either “medical abortions”, achieved by medications (mifepristone, followed by misoprostol 24 or 48 hours later), or “surgical abortions”, involving either vacuum aspiration of the “products of conception” using an electrical or manual vacuum device, or dilatation of the cervix and curettage (scraping) of the lining of the uterus (D&C). During the second trimester, between 12 and 24 weeks, dilatation and evacuation (D&E) is usually resorted to. This latter procedure is considered a “barbaric practice” by anti-abortionists as it involves piecemeal removal of the crushed foetus.
Some sixteen “blue” (Democratic) states and Washington DC are expected to protect abortion rights even if Roe v Wade is overturned. This may mean that women seeking abortion may have to travel inter-state to procure one if they so desire. This concentration of facilities may also render the smaller numbers of abortion clinics that stay in business even more vulnerable to pro-life activists seeking to disrupt their activities.
The debate over abortion rights involves reconciling public opinion, personal freedom of choice, religious dogma (conservative Catholicism, evangelical Protestantism), moral rectitude, ethical issues, medical concerns, and political ideologies, and many other viewpoints. The final decisions will inevitably fall to the dominant political party at state-level. Whatever the outcome, abortions may once again be criminalised in parts of America, to the detriment of maternal health in some instances, especially the poor and disenfranchised, and growing numbers of so-called “unwanted” children will demand special efforts for their upbringing and mental wellbeing. No matter who claims the plaudits for victory in case Roe v Wade is repealed, there can be little doubt who will be the losers. American female victims of sexual assault, including domestic rape, or incest, and others unwilling to remain pregnant, may no longer be able to access abortion on-demand, while lacking the financial resources and social support necessary to bring up a child they had not planned for. It may also be fair to conclude that either reducing access to, or criminalising, abortion will neither abolish unintended pregnancies nor yield the solutions to provide for the upkeep of children who their mothers had not wished to bring up in the first place.
Ashis Banerjee