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“Liberty finds no refuge in a jurisprudence of doubt.” These words opened the Supreme Court’s 1992 Planned Parenthood vs Casey opinion, in which the court sought to clarify, and ultimately settle, the controversy surrounding its landmark abortion-rights decision, Roe vs Wade. However, a brief assessment of the legal state of abortion rights in the US now reveals that the court has failed to settle much of anything.
The US Supreme Court on Friday issued a ruling on Dobbs vs Jackson Women’s Health Organization, overruling Roe vs Wade, eliminating the constitutional right to abortion after almost 50 years. This decision may not only transform American life or reshape the nation’s politics or the lives of American women – but may go on to have serious implications for people who are pro-choice, the right to abortion and socio-legal movements that are centred on reproductive rights across the globe.
The ruling may also lead to all but total bans on the procedure of abortion in about half the US states.
Before one interprets the jurisprudential, socio-legal implications of the Supreme Court announcement – a few months after its own draft verdict was leaked – a little bit of context may be needed for those less aware of the issues underlining this SC decision.
Dobbs vs Jackson is the court case over Mississippi’s state law that banned abortion after 15 weeks. A lower court in the state struck the law down as unconstitutional because Roe vs Wade protected a pregnant person’s right to an abortion prior to fetal viability, generally considered to be around 24 weeks. Mississippi appealed the lower court’s ruling, and the case went to the US Supreme Court. Dobbs vs Jackson is the first time since 1973 that the court has ruled on the constitutionality of banning abortion before viability.
What is/was Roe vs Wade?
The case is/was sometimes referred to simply as “Roe”, the listed name of the 22-year-old plaintiff, Norma McCorvey. ‘Wade’ was the defendant Henry Wade, the Dallas County (Texas) district attorney at the time. Roe struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb (see here for the jurisprudential history of abortion in the US).
Foetal viability was around 28 weeks (7 months) at the time of the Roe judgment; health experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and newer studies show this could be further pegged at 22 weeks. An average pregnancy lasts about 40 weeks.
Foetal viability is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus. The length of a pregnancy is commonly calculated from the start of a person’s most recent menstrual period. Since many people identify pregnancy only after the sixth week, pre-viability timelines leave women with very little time and opportunity to make a decision to abort. Abortion laws across the world rely on this metric but those opposing abortions argue that this is an arbitrary timeframe that legislation and the court in Roe adopted.
So, is abortion illegal in the US now?
With Roe vs Wade overturned, abortion is still legal in much of the US, but individual states are now free to make abortion illegal. What it does, however, is remove the (legal) shield that had prevented states from making ‘abortion’ illegal.
Without Roe vs Wade, an individual’s ability to access abortion depends on the state where they live. See a map below to get a sense of how ‘abortion’ is likely to be immediately banned in 23 states and territories as Roe vs Wade was overturned.
Who will be most affected?
Some 40 million women of child-bearing age will live in states where abortion will become more difficult to access, according to the Guttmacher Institute, a research organisation that supports abortion rights.
About 630,000 abortions were performed in the US in 2019 alone, according to the US Centres for Disease Control and Prevention (CDC), although Guttmacher’s own research indicates it may be closer to 860,000.
The CDC says that the vast majority of abortions, 92.8%, are performed during the first trimester. Most people who get abortions are unmarried, although they may be living with a partner at the time.
About one in 10 women who get an abortion are teenagers, with most being in their 20s. About 60% of people who get abortions have also given birth before, and nearly 60% had never had an abortion before.
As former US President Barrack Obama and Michelle Obama said”
“Few, if any, women make the decision to terminate a pregnancy casually-and people of goodwill, across the political spectrum, can hold different views on the subject. But what ‘Roe’ recognized is that the ‘freedom’ enshrined in the 14th Amendment of the Constitution requires all of us to enjoy a sphere of our lives that isn’t subject to meddling from the state… The consequences of this decision would be a blow not just to women, but to all of us who believe that in a ‘free’ society, there are limits to how much the (American) government can encroach on our personal lives…”
A regressive turn for ‘freedom’, ‘human rights’, ‘development’ and ‘social change’
The legal, social and economic implications of the Supreme Court decision will unfold across American states in the months and years to come. How this may weaken the ‘federal’ core of American constitutionalism and essential freedoms – leaving too much in the hands of the state while testing its powers – is also up for debate, across political spectrums.
As the legal scholar Upendra Baxi argued in his famous paper “From Human Rights to Right to be Human..”,
“The problematic of (human) needs is acutely disturbing for the received models of human rights thought and action. It often gets translated into a conflict between ‘bread’ and ‘freedom’; freedom usually wins with the liberal conceptions of rights, despite the awareness that without ‘bread’, freedom of speech and assembly, of association, of conscience and religion, of political participation-even though symbolic adult suffrage-may be existentially meaningless for the ‘victims’.”
But the issues here are not really of “bread” and/or “freedom” in the abstract (as evident in the American scenario), but rather who has how much of each, for how long, at what cost to others, and why. Some people have both “bread” and “freedom”; others have “freedom” but little “bread” or none at all; yet others have half a loaf (better than none, of course) with or without “freedom”, and still others have a precarious mix where “bread” is assured if certain (not all) “freedoms” are bartered.
Baxi’s argument is worth a mention – and critical reflection here.
The problem of basic rights, especially human rights, in situations of mass poverty, is according to him, one of redistribution i.e. access and needs. In other words, it is a problem of “development”, a process of planned social change through the continuous exercise of public power.
But, in a so-called ‘developed’ society and ‘self-fulfilled’ economy like the US, despite wide inequities of relative income and wealth, it is difficult to fathom the schizoid view of the Supreme Court and its Justices, where in matters of gun control, it is obsessively determined to ‘protect the second amendment’, and in case of a woman’s right to choose abortion, it speaks of ‘control’ allowing for ‘state intervention’.
It is difficult to understand how this ‘problem of basic rights’ is stemming from ‘development’, or is part of any conflict between “bread” or/and “freedom”, or maybe, it is a concern stemming from ‘over development’, in a material sense, where “bread” isn’t a concern but “freedom” of all is.
This reflects a chronic state of change/churn in American society’s value system.
And, as Baxi states further, as there is no assurance that public power will always, or even in most cases, be exercised in favour of the deprived and dispossessed, an important conception of ‘development’ itself is ‘accountability’, by the wielders of public power, to the people affected by it and people at large. ‘Accountability’ is the medium through which we can strike and maintain a balance between the governors and the governed.
In the American scenario, post-overturning of Roe vs Wade, how ‘accountable’ do the legislative-executive remain in upholding the constitutional freedoms, across states, when the SC seems to have bartered these for a wider so-called ‘social good’ (in the name of keeping religion ‘sacred’ to a collective belief viz-a-viz respective personal choice), what can be done to ensure reproductive rights, access and needs, and the right of a woman to choose her own fate, remains to be seen. If one was to believe the politics of the land, and infer systemic points of observed social change, exacerbating political and religious polarisation – and the headwinds that accompany them based on the weakening of liberal-democratic systems across the globe – not just seen in America, it spells trouble for America, and choice.