Shortcuts / 30 June 2022

Overturning Roe v Wade

The US Supreme Court has removed American women’s constitutional right to have an abortion. It wasn’t exactly a surprise – the draft opinion was leaked 2 months ago. So in this Squiz Shortcut, we take a look at what led to the Supreme Court’s decision, what it means for reproductive rights in the US, and a look at Australia’s abortion laws.

First things first – remind me about Roe v Wade…
It started when a Texan woman and mother of 2 named Norma McCorvey wanted to get an abortion when she fell pregnant with her 3rd child in 1969. But the state’s laws only allowed it in cases of rape and incest, or to save a mother’s life.

Did McCorvey end up having the child?
She did. But her case was taken up by local lawyers and went all the way to the Supreme Court as they argued for her right to access a safe and legal abortion. It was in that case that McCorvey went by the pseudonym ‘Jane Roe’, and Henry Wade was the Texan prosecutor.

And the Supreme Court decided in McCorvey’s favour?
Yep – that decision was handed down in 1973, and it came down to her right to privacy.

Her privacy?
Bear with us… The Supreme Court said the US Constitution protects an individual’s “zone of privacy” and that zone was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.

Right. So what did the decision mean?
It established a constitutional right to abortion, striking down laws in many states that had banned the procedure. It said states could not ban abortions before fetal viability, which is the point at which the fetus can survive outside the womb.

Which is…
In the 1970s, fetal viability was around 28 weeks. Because of improvements in medical technology, that’s now around 23 weeks.

So the Roe v Wade decision stood from 1973 until now?
That’s right, but it was always on shaky ground. That comes down to a lingering question about whether abortion should be considered a constitutional right.

Please explain…
It was a question that even some who were pro-choice asked. The most high-profile example is Justice Ruth Bader Ginsburg, who expressed her concerns about Roe over the years before her death in 2020. She said “The court bit off more than it could chew,” by making abortion a constitutional right.

Not to mention the legal challenges over the years…
For sure, but the Supreme Court held the line – until it didn’t. What happened last Friday was enough members of the current Supreme Court decided to overturn Roe, leaving each state to set its own abortion laws.

What led to that decision?
A new case – Dobbs v Jackson Women’s Health Organization. The case was brought by the only abortion clinic in Mississippi against state officials – essentially they were challenging a state law banning abortion after 15 weeks.

That’s what the leaked opinion was about?
Yep – the draft opinion from the majority of Supreme Court Justices that was leaked in May pointed to the decision that’s changed everything when it comes to seeking an abortion in America.

So how do the numbers work?
Five Supreme Court Justices agreed that “the constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” There are 9 Justices, so 5 is a majority…

Didn’t former President Donald Trump appoint some of those judges?
He did – 3 of them.

What did Trump’s appointments do to the court’s balance of power?
The Supreme Court was ideologically deadlocked with 4 liberals and 4 conservatives when Trump took office – and his appointments gave it a 6-3 conservative majority by the time he left. It’s something that will play out for years to come…

Back to the decision – what was the immediate impact?
Well, there were women booked in to have a procedure in the days after the decision who have been left in limbo. And reports say that clinics across the country have cancelled appointments out of fear of prosecution. It’s left many women racing to make other plans, including going to states where it is still available.

So some states have already banned abortion?
Yep. Seven states have bans in place, and another 23 are making plans to ban or put restrictions on the procedure.                   

What does that mean?
In states where abortion is banned, it will be illegal. And in states where it will be restricted, that could be on who can get access to the procedure – for example, women who are pregnant because of rape or incest or because their life is at risk. Or some states might allow abortion services, but only up to 15 weeks of pregnancy.

I’ve heard some states are really cracking down…
Some are. That includes looking into preventing women from travelling across state lines to get their abortions elsewhere. And there could be a crackdown on abortion pills.

Tell me about those pills…
Many women choose that method because it’s less expensive, less invasive and affords more privacy than surgical abortions – and the pills can be received by mail and taken at home, or anywhere. More than half of terminations in the US are done this way. 

What are abortion rights campaigners doing?
They have a lot of work to do… Their immediate focus will be fighting those state-by-state battles. And there will be a lot of protests… Those behind the Women’s March (aka the group that rallied hundreds of thousands of women after Donald Trump became president in 2017) have promised a “Summer of Rage”.

But the big picture?
Their aim is to push the Biden administration to do more to protect abortion rights at the federal level and have it overrule those state laws again.

What does President Biden say? 
Overnight, he condemned what he called the “outrageous behaviour” of the Supreme Court. He added: “We have to codify Roe v Wade in the law”. That’s tricky and comes down to politics. 

Just on politics, isn’t there an election coming up?
There is – the mid-term elections are coming up in November. They are the elections that occur midway through a president’s term, and it’s the public’s chance to vote for all 435 House of Representatives seats and a third of the Senate. There are also a bunch of state elections that happen at the same time.

What do the parties say?
Both Democrats and Republicans are trumpeting the overturn of Roe as an opportunity to motivate their supporters. But what many say is that the chief concern in the US at the moment is cost of living concerns and economic uncertainty – and there are questions about whether the issue of abortion rights will cut through to swinging voters who are worried about their jobs.

Long story short?
The decision has placed the US among just a few countries that have severely curtailed access to abortion in the 21st century – and it’s unlikely we’ve heard the last of it.

What’s the situation here in Oz?
We won’t ever have a pivotal moment over abortion rights like the US has had with the overturning of Roe. And that’s because of the way our system is set up and the way abortion rights are handled.

Let me guess…
Yep, they’re handled by differing state and territory laws. And when you look at how the jurisdictions handle abortion – it has been decriminalised in all jurisdictions except Western Australia, where it is still regulated by the Criminal Code.

So just to go back a step, abortion was a crime?
It was. These were laws based directly on legislation enacted in England in the 19th century and the starting point was that abortion was morally offensive. In the 1960s and 70s, many states shifted ground a bit, allowing abortions to be performed in certain situations. But it took some time for abortion to become decriminalised – except in Western Australia, as we mentioned.

So abortion was decriminalised a while ago?
Hold your horses… South Australia became the latest to move abortion from criminal law into healthcare legislation – that law comes into effect this month. It isn’t that far behind NSW – it decriminalised abortion in 2019.

How many abortions there are in Australia?
That’s hard to tell – there’s no national data collection on abortion. But researchers have estimated it to be between 60-80,000 terminations a year.

What does that mean?
When you look across the population, one study says about one in 6 women has had an abortion by their mid-30s. It also said that women with children were more likely to have an abortion than women who did not. And women who recently experienced partner violence were more likely to terminate a pregnancy than women who reported no violence.

How does that stack up?
Experts say Australia’s abortion rates are about on par with those of developed countries around the world.

Thanks, that was a tricky one.

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