A Woe for Abortion Rights: US Supreme Court’s opinion to overturn Roe v Wade causes upheaval

May 20, 2022

4 min read

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What's going on here?

A leaked US Supreme Court Draft Opinion exposes the Court’s vote to overturn abortion rights. These rights were previously established in the landmark case of Roe v Wade, a move that transformed women’s civil rights across the US.

What does this mean?

Roe v Wade is a 1973 US Supreme Court case that made abortion legal across the States. The plaintiff was Norma McCorvey, using the legal pseudonym, ‘Jane Roe’. She attempted to get an abortion in Texas in 1969, but state law banned it. McCorvey sued Henry Wade, the district attorney who enforced the law. Her case eventually made it to the Supreme Court. A 7-2 decision struck down the state law and all others like it, ruling that a woman’s right to privacy under the 14th amendment superseded the state’s right to ban abortion.

Recently, a leaked opinion, written by Justice Samuel Alito, indicates a majority of US Supreme Court justices are planning to support overturning the historic Roe v Wade judgment that legalised abortion. Democrats attempted to impede this move in the US Senate on Wednesday 11th May 2022, but the bill was blocked by Republicans by a 51-49 vote.

As of Wednesday 18th May, it is unclear at this stage if the draft represents the Court’s final word on the matter. The Supreme Court has yet to issue an official ruling in the case, and opinions – and even justices’ votes – have been known to change during the drafting process. The court is expected to rule on the case before its term ends in late June or early July 2022.

What's the big picture effect?

This decision has enormous implications for the precedent it sets regarding the right to privacy and autonomy. Previously, the US Supreme Court ruled on innumerable cases protecting rights, such as the right to purchase and use contraceptives (Griswold v Connecticut 1965) and the right to same-sex marriage (Obergefell v Hodges 2015). In Roe v Wade itself, the court based its decision upon the reasoning that a woman’s 14th Amendment right and the marital, familial, and sexual privacy guaranteed by the Bill of Rights is incapable of being surmounted.

The recent contentious Supreme Court decision seems to contradict all such decisions that have prioritised the right to individual autonomy and choice. It is unclear whether these previous decisions will be impliedly overruled, or whether the courts are to start interpreting future cases per the perspective that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

The decision also highlights the tensions between the idea of human rights and individual state autonomy. Many states in the US create their own, individual laws. Federal laws, however, apply to everyone and are achieved by a bill passing both houses of Congress. If the landmark case were overturned, the legality of abortion would be left to the discretion of each state. 26 states are expected to ban or restrict access to abortion if Roe is overturned.

The socio-economic implications of any decision to overturn Roe v Wade are sufficient to form a strong case against overturning the decision. Access to safe and lawful abortion services is firmly rooted in the rights to life, nondiscrimination, to be free from torture and cruel, inhuman, or degrading treatment, and privacy, among others. These rights are recognised in international human rights treaties ratified by the US. Banning abortion would undoubtedly have a significant impact not only on pregnant people, but also a significant effect on marginalised groups, including those living in economic poverty, young people, and people of colour. Historically, abortion bans have not reduced the number of abortions but rather increased unsafe abortions, especially affecting people of limited means.

Law firms and the legal field will be facing an influx of cases seeking advice. If the decision to overturn succeeds, there will be a rise in illegal abortions taking place. Law firms need to equip themselves with the resources and most recent knowledge pertaining to the law regarding abortions in their state. Furthermore, US citizens may be traveling to other countries to get an abortion and may need legal advice regarding what abortion rights are like in other jurisdictions. As a result, clinics in neighboring states are already preparing for a surge in patients from states that limit access to abortion.

The fact that the President of the United States, the head of state, has no influence in the controversial decision raises significant questions about the legal system. The facts seem to suggest a severe flaw, if not failure of the democratic system that relies on its elected representatives to make decisions for the public’s well-being. Commentators have remarked on how Republicans, the non-elected party, have been working for decades to get more conservative judges in power to overturn the Roe v Wade decision specifically. Now, it seems as though they have succeeded. 

There is a strong fear that after abortion rights, the Supreme Court may follow a domino effect of restricting same-sex marriage, contraception, and other rights. As of today, the world awaits with bated breath for the Supreme Court’s revolutionary decision on the matter.

Report written by Sanjana Sethi

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