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A Constitutional Calamity—The Overturn of Roe v Wade


On 24th June 2022, the Supreme Court of the USA made a monumental ruling on the Dobbs v Jackson Women’s Health Organization case, which ended the constitutional right to abortion, after 50 years of abortion being a federal legal right, by overturning the decision made on the 1973 Roe v Wade case.

The ruling is playing out as a political earthquake across the States, as it acts on one of the country’s most polarising and fiercely fought social debates, at the heart of which lies the intrinsic question of whether a woman has the right to choose an abortion.

The move, which gives individual states the power to define abortion rights, is expected to completely criminalise or severely restrict legal access to abortion in at least half of the States of America. With some states already having fired trigger laws to outlaw abortion and many more mobilising immediate actions against abortion, the public is in divisive chaos with furious protests from abortion advocates.

Doors are being shut on women in abortion clinics across the States amidst celebrations from anti-abortion advocates who see this as their victory.

Abortion Over The Years

In light of the recent events that have prompted a tidal wave of anger and concern among advocates across the country, it is imperative that we take a closer look at the history of abortion rights in the past. Abortion was widely destigmatised for American women before 1840, according to historians. The American Medical Association, formed in 1847, argued that doctors had a better understanding of the female anatomy and therefore, should have the authority over abortion. This excellent grasp of knowledge, however, did not exist and was used to discredit female healers and midwives. It also served as an impetus to pass anti-abortion laws. Consequently, by the early 1900s, abortion was made illegal in every state.

Over the years, abortion remained criminalised at every stage of the pregnancy. Americans brought about change in the 1960s as many organisations, including AMA, advocated against anti-abortion laws. Colorado became the first state to change its law in 1967, followed by California and New York. In 1973, the Supreme Court legalised abortion in all fifty states with the Roe v. Wade decision.

The Origin of Roe v Wade

Since all but a few states in the US denied abortion as unconstitutional until the Roe v Wade case, when 21-year-old Norma McCorvey from Texas wanted to terminate her pregnancy in 1969, she faced restrictions from the state of Texas where abortion was forbidden unless childbirth would pose a threat to the woman’s life. McCorvey, pregnant for the third time, with the first two children given up for adoption, was from a distressed and disadvantaged background and thus, like many other women in similar situations, failed to undergo an illegal abortion. She had also claimed that she had been raped, but the case was rejected.

In 1970, McCorvey, going by the pseudonym Jane Roe, along with two Texas attorneys, filed a lawsuit against Dallas district attorney Henry Wade, who defended the anti-abortion laws. The Texas district court declared that a ban on abortion violated the constitutional right to privacy, but Wade insisted on continuing the prosecution of people partaking in abortion.

Discussions over the Roe v Wade decision at the Capitol in Wisconsin in 1973. [Source: Associated Press]

Roe’s appeal made it to the Supreme Court in 1973 and was in the national spotlight popularly called ‘Roe v Wade’, in the backdrop of the 1960s Women’s Liberation Movement and the political debate over abortion on moral and religious grounds. On 22nd January, a landmark 7-2 verdict was made, which declared that a woman had the constitutional right to undergo an abortion under the purview of the right to privacy. The decision struck down the states’ laws that infringed on this right and legalised abortion by means of the trimester system, allowing full freedom to a woman to undergo abortion in the first trimester and only some regulation in the second trimester.

Although Roe had already gone through her pregnancy forcefully by the time the court made its decision, her case is seen as a historic win providing women with the legal right to abortion, much to the chagrin of the anti-abortionists.

The Overturn Verdict

This verdict which caused a formidable impact on the citizens of America and the world has shaken everyone to the core. The historic decision of Roe v Wade was overruled by the Supreme Court on Friday in a 5-4 decision. The court’s contentious but anticipated decision grants breaking Roe, which had legalised abortions during the first two trimesters of pregnancy.

Tens of millions of individuals will be impacted by the laws nationwide, and some may need to travel across state lines to access reproductive healthcare. The Supreme Court’s ruling is projected to result in over half of the states banning or severely restricting abortion.

The majority opinion that overturned Roe and the 1992 ruling in Planned Parenthood v. Casey, which upheld the right to an abortion, was inexorably written by Justice Samuel Alito and backed by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The Supreme Court building on Capitol Hill rapidly became the scene of protests as the three liberal justices of the court—Breyer, Sotomayor, and Kagan filed a dissenting opinion to the decision.

The Dire Consequences

As the nation stands divided, abortion bans were triggered within hours in multiple states including Utah, Ohio, Missouri and Alabama, with no exception for cases of rape in most of the states. In due course of time, as many as 26 states are expected to impose severe restrictions according to research.

A graphic using information from the Guttmacher Institute showing the legality of abortion across different states. [Source: The Guardian]

Some states such as Washington and California have assured continued protection of rights and are expected to release new constitutional amendments protecting reproductive rights. President Joe Biden publicly denounced the ruling and communicated that women wanting to undergo abortion should travel to the states where it was not banned.

Abortion seekers entered a frenzy of confusion as the news came out, with many abortion clinics and providers abruptly halting services out of fear of being prosecuted amidst the uncertainty of laws and many women travelling across state borders in urgency to states which still permitted it. The clinics still operating are preparing to face an influx of thousands of patients from neighbouring states.

There is also a spike in the demand for abortion pills and medications, using which half the legal abortions have been taking place in the country. Texas and Louisiana have already banned the movement of pills across other states with more states likely to follow suit. The obstacles for women created by the ruling are therefore far-reaching and insoluble without legal aid.

Marginalised women, however, will bear the brunt of the decision as a lack of abortion rights has historically fuelled financial instability among women. Access to abortion will also be exclusively reduced for Black and Hispanic women, as many women will be unable to afford to travel to other states for undergoing procedures, while disparities have already resulted in worse reproductive healthcare for Black women in the US compared to white women.

Several corporate tech and banking goliaths have come forward to assist employees seeking abortion in the form of reimbursements and employee benefits for healthcare and travel. Tech firms also face the challenge of securing user data in the wake of possible prosecution owing to involvement with abortions.

Perhaps the most jarring prospect of this tectonic verdict is that it is largely being seen as a threat to the legacy of the court, putting erstwhile constitutional rights in jeopardy. As people wait to see its long-run ramifications, the country is left in a state of ambivalence.

The Public Outcry

The verdict has birthed a plethora of problems for the government. The political fallout coupled with miscommunication amongst the masses has cast the government in a negative light. People across the country now have varying levels of access to healthcare.

Heated protests outside the Supreme Court over the court’s ruling [Source: The New York Times]

The atmosphere was filled with voices of anger and dissent, as the young and old joined together to chant slogans of protest and defiance. Throughout the afternoon, protesters, most of whom were female and young, trickled in and out of a barricaded area across the street from the Supreme Court. The crowd listened to a rotating list of speakers who sobbed as they shared their abortion stories.

“This has been a fight 30 years in the making to overturn women and people’s fundamental rights to make decisions about their body. There is no coming back from this. There is no response other than outrage and action,” said Sara Kugler of Washington DC, who was standing outside the court building. The majority of Americans (61%) believed that Roe should remain the law of the land, and only 36% supported overturning it, according to the Public Religion Research Institute think tank.

Anti-abortion advocates celebrating. [Source: The New York Times]

As a chorus of anti-abortion advocates lined up outside the Supreme Court post the verdict, the future of abortion rights seemed bleak. Many of them expressed their joy and satisfaction and claimed that the overturning of the Roe Vs Wade case was just the beginning. The Archbishop of Boston, Sean O’Malley, called the decision “deeply significant and encouraging.” The Massachusetts Family Institute said it looked forward to a “re-energised fight to restore a culture of life to the commonwealth.”

Until and unless a change is made, this constitutional setback will continue to have an impact on millions of lives. As tens of thousands of women struggle to access sufficient healthcare in their hometowns, they will reluctantly turn to illicit surgeries that could be fatal to their lives. Developing progressive global health programmes centred on women’s sexual and reproductive rights will become more challenging for governments and organisations as they run the danger of losing financing in the future. The verdict is simply the beginning of what may eventually become a widespread movement against abortion, leaving the fate of women in a desolate and precarious state.

Featured Image credits: Associated Press

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