Shortcuts / 12 May 2022

Roe v Wade

A big battle is brewing in America over the future of abortion rights after it was revealed that the Supreme Court is on the cusp of overturning a judgement that legalised terminations across the country: Roe v Wade. So in this Squiz Shortcut, we look at the landmark legal decision, the efforts over the years to overturn it, and what will happen if that occurs.

Take me back to the start of Roe v Wade
It’s 1969 in Texas where Norma McCorvey was a mother of 2 who had fallen pregnant with her 3rd child. She wanted to have an abortion but at the time the state’s laws said only cases of rape and incest or to save a mother’s life were allowed to get the procedure.

But that wasn’t the case for McCorvey?
No. She looked into getting an illegal abortion but that was available to her. So went to a local lawyer for advice and to make arrangements for the adoption of her child. He also put her in touch with 2 female law school graduates.

So how did the legal challenge come to be?
The 2 graduates brought a lawsuit on behalf of McCorvey, who went by the pseudonym ‘Jane Roe’ throughout the case to protect her identity. They claimed that the state’s law violated Roe’s constitutional rights to a safe medical environment in her home state.

What happened?
The court agreed that the law violated her right to privacy which is found in the 9th Amendment, making it unconstitutional. Texas District Attorney Henry Wade then appealed to the Supreme Court to overturn the decision.

And that’s where the name ‘Roe v Wade’ comes from?
You betcha. 

So what’s privacy got to do with it?
The Constitution protects an individual’s “zone of privacy” which Roe’s lawyers argued was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”. The court said that during the first trimester, the decision to abort was a decision to be made by a woman and her doctor.

And she won in the Supreme Court?
She did. The court found 7-2 in favour of the initial judgement that Texas had violated Roe’s constitutional right to privacy.

So what did Roe v Wade mean for American women?
It established a constitutional right to an abortion in the US during the first trimester of pregnancy – and that right trumped state laws. However, it allows the states to impose certain regulations during the 2nd trimester to protect both mother and baby’s life.

How was it received?
It remains one of the most contentious issues in the US, and in the decades since the decision, there have been many legal and political attempts from the pro-life movement to overturn or weaken the ruling.

Why is that?
The pro-life movement broadly believes in a foetus has a right to life and that life begins at conception.

But the right to access abortion services isn’t enshrined in legislation, is it? 
No. Congress never turned the legal precedent into law. 

Have any changes been made to Roe v Wade over the years?
There have been some – in 1992, Pennsylvania came into focus because of a case called ‘Planned Parenthood v Casey’ in the Supreme Court. While the court’s judgment upheld the Roe v Wade ruling, it allowed the states to restrict access to terminations as long as they didn’t pose an “undue burden”.

What does that mean?
Well, what it did in practice was usher in a new era of anti-abortion restrictions that tested the constitutional limits of the Supreme Court’s Planned Parenthood vs Casey ruling. And during the 1990s, campaigners started to adopt more extreme tactics, including creating blockades around abortion clinics.

And there was violence?
Sometimes. For example, Dr David Gunn was shot and killed outside an abortion clinic in Florida in 1993. In fact, at least 11 people have been murdered as a result of attacks on services since 1977.

And Donald Trump comes into this too, right?
He does. He was elected president in 2016 thanks to strong support from the religious right. He said people who had abortions should be punished and he promised to appoint Supreme Court justices who would “automatically” overturn Roe v Wade.

Did he stick to his word?
He did – he appointed 3 justices to the court during his term in office: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. This gave conservatives a 6-3 majority and laid the groundwork for the Supreme Court to revisit its position on Roe v Wade.

So take me through that…
Supreme Court Justice Stephen Alito had circulated a draft opinion representing the conservatives on the bench saying the Roe v Wade judgment should be overturned. That document was leaked to the American news outlet Politico

What was the reaction?
It absolutely exploded into the news cycle with pro and anti-abortion groups descending on Washington DC.

What did the Supreme Court say?
The court went into damage control – it confirmed that the document was authentic but said the decision wasn’t final. 

So why is this coming up now?
It follows a challenge by Mississippi’s only abortion clinic to a 2018 state law banning abortions after 15 weeks. The clinic argues the state law violates Roe v Wade and later decisions upholding it, while the respondents argue the precedent should be reversed.

And that’s what the Supreme Court’s majority of justices is looking to do?
Well, it seems so. Alito makes it clear in the leaked document that he doesn’t believe the Constitution makes judgments relevant to abortion – and that the power to make those judgments should be returned to the states.

So what would happen if the draft ruling becomes final?
The consequences would be immediate – 23 states have laws that would restrict abortion if Roe v Wade was struck down. 

And that would affect a number of women…
Research has found that black and Hispanic women would be particularly affected by restrictions or bans. That’s because they get abortions at rates higher than their white peers due to more limited access to healthcare and birth control.

But pro-life campaigners are encouraged? 
Many are, but it’s complicated. For many campaigners, their focus is on reducing the number of abortions across the board. So while they see restricting abortion as a win, many say it’s not “holistically pro-life” or enough to address the needs of women and unborn children.

What did the US Government say?
President Joe Biden said that overturning Roe v Wade would be a radical move that could threaten all Americans’ right to privacy. 

So will abortion rights be legislated?
That’s hard to do. In February this year, the Republican-majority Senate voted down a bill 46 to 48 that would have granted a federal right to abortion – and that happened again this week.

How is this all expected to impact American politics?
Well, here come the midterms… They’re the federal elections held midway through a president’s 4-year term and while Biden has been polling poorly, some commentators think this issue could energise Democrat voters.

What does that mean?
If the Democrats keep control of the House of Representatives and win control of the Senate in the midterms, it would open the door to legislation for abortion rights, and actioning Biden’s wider agenda.

And for those who support overturning Roe v Wade? 
It gives them a big issue to campaign on too. 

So that’s all something to watch… 
It sure is… And note that we’ll hear more from the Supreme Court about what its final position is in the coming month or 2. 

Squiz recommends:

‘Supreme Court has voted to overturn abortion rights, draft opinion shows’Politico

‘The Roe Baby’The Atlantic

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