Overturning history

Within weeks, the US Supreme Court could remove a right long relied on by American women.

The recent leaking of a draft decision in the case of Dobbs v Jackson Women’s Health Organization confirmed expectations that the country’s highest Court is preparing to overturn the 50-year-old precedent of Roe v. Wade (410 U.S. 113 (1973)), which established that abortion was a constitutional right in America.

It reminds us of the fundamental importance of access to abortion for women’s control of their own bodies, and through control of their own fertility, over their own lives.

Abortion is likely to be the last preference for fertility control, but it remains a necessity while not all women have good access to contraception, and contraception can fail. The advent of drugs like Mifepristone (RU486) has facilitated medical rather than surgical abortion.

The timing of Roe v. Wade was significant. It followed the rise of the women’s liberation movement in the 1960s and the development of the contraceptive pill, which freed women from uncontrolled fertility.

The timing of the leak of Dobbs is equally significant, as it follows President Donald Trump appointing three conservative justices to the US Supreme Court.

These are the judges who are presumed, with Justice Clarence Thomas and the author of the draft decision, Justice Samuel Alito, to form the putative 5-4 majority identified in the draft. Overturning Roe v. Wade has been a leading motivation of conservatives in the US fighting back against social progressivism.

The 1973 Roe decision was a 7-2 decision which found that a right to privacy could be inferred from the US Constitution, which protects a pregnant woman’s medical decision-making about whether to have an abortion from government intrusion.

The right isn’t absolute and has to be balanced against other interests that governments can regulate, like protecting women’s health and prenatal life which develops during pregnancy.

The Court’s framework allowed different levels of government regulation in the three trimesters of pregnancy. In the first trimester, governments couldn’t intervene in the woman’s decision; in the second trimester governments could adopt reasonable health regulations; and in the third trimester, abortions could be prohibited except where necessary to save the life or health of the woman.

This framework was adjusted in the 1992 decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992) to take account of medical developments that allowed foetal viability – that is, the ability to survive outside the mother’s body – to occur earlier in the pregnancy.

The leaked decision asserts that there was never a basis for Roe v. Wade in the Constitution, and that it should therefore be overturned. It’s not yet final, and the reasoning and scope of the decision may change before it is published at the end of the Court’s term in June.

But assuming the final decision strikes down the precedent of Roe, what does it mean for women’s abortion rights in the US?

Constitutional protection meant that US state and federal governments couldn’t pass laws to remove or infringe on the right. With Roe’s demise, governments will be able to adopt laws to regulate and even prohibit abortion.

What laws are passed will vary between states.

Many states already have pre-Roe laws, or more recent laws that will revive or begin to operate once the constitutional bar on them is lifted. Conservative states like Texas and Oklahoma have already moved to prohibit access to abortion, while progressive states like California and Oregon will continue to provide ready access, and even take steps to open their facilities to women from other states.

The biggest impact is likely to be on the poorest women, including many African Americans who live in the conservative Southern and mid-West states, who may not have the resources to travel the distances needed to reach a state that allows abortion.

There are serious concerns for women’s health and freedoms if abortion access is restricted.

A return to the old days could mean that women faced with an unwanted pregnancy could be forced to continue with all its implications for their freedom and for the unwanted child, or to seek an illegal or self-induced abortion at the possible risk of their life or health.

It’s deeply troubling to think that Margaret Atwood’s novel, The Handmaid’s Tale, may have been prescient in representing the future of many women in America.

If the decision is overturned, there’s concern that other constitutional rights could also be vulnerable to incursions based on the Court’s reasoning.

Constitutional protection of access to contraception and same sex marriage have been identified as rights that may come under threat.

From an Australian perspective, in the absence of constitutional protection for fundamental rights, the decriminalisation of abortion has been achieved through legislative change based on hard campaigning.

Arguably this has created a stronger right that can only be removed by changing the law, requiring majorities in two houses of Parliament, rather than merely among the nine judges of the Supreme Court.

US President Joe Biden has responded to the leaked decision saying a woman’s right to choose is “fundamental” – but it remains to be seen whether he’s willing to go against the Supreme Court to save Roe v. Wade.

For now, it’s a matter of waiting until the US Supreme Court makes its imminent decision at the end of its term.

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