The US Supreme Court is expected to issue a ruling in a Mississippi case challenging a state law banning most abortions after 15 weeks of pregnancy, presenting a major challenge to the landmark precedent established in the 1973 ruling in Roe v Wade, which enshrined consititutional protections for the procedure.
Dobbs v Jackson Women’s Health Organization marks the first major abortion rights challenge in front of the new conservative majority on the court with its three newest justices, all conservatives appointed by former president Donald Trump. The court heard oral arguments in the case on 1 December 2022. A leak of a draft opinion in the case suggests that justices are prepared to overturn Roe.
The Roe ruling effectively repealed laws that banned the procedure outright and sparked decades of religious and moral conflict over women’s bodies.
The precedent established by Roe and reaffirmed by 1992’s Planned Parenthood v Casey, if rejected by the Supreme Court, could eliminate abortion access across more than half the US and force many pregnant women to carry their pregnancies to term unless they can travel to a handful of states with abortion protections in place.
In 2022, a wave of anti-abortion legislation in Republican-led states, emboldened by the Supreme Court’s forthcoming decision, proposed eliminating abortion access in most cases and criminalising abortion care.
What is Roe v Wade?
The case revolved around Norma McCorvey – known for the purposes of the proceedings as “Jane Roe” – who became pregnant with her third child in Texas in 1969 but was unable to access abortion care after it was banned in her state in all cases but to “save a woman’s life.”
She was supported by lawyers Sarah Weddington and Linda Coffee, who filed a lawsuit on her behalf in federal court against her local district attorney, Henry Wade, alleging that the state’s abortion laws were unconstitutional.
The US District Court for the Northern District of Texas ruled in her favour, which was kicked up to the Supreme Court following an appeal from Texas.
The Supreme Court’s 7-2 decision in Ms McCorvey’s favour was based partly on the 14th Amendment’s “right to privacy” that protects a woman’s right to access abortion.
Ms McCorvey, who was unable to access a legal abortion, gave birth before the case was heard and the baby was put up for adoption.
She said at the time that she did it “on behalf of herself and all other women” in the same situation.
The decision also set a legal precedent that affected more than 30 subsequent Supreme Court cases involving restrictions on access to abortion.
Conservative Christian movements and politicaly powerful right-wing legal groups have committed for decades to overturning Roe. The most recent addition to the Supreme Court, Amy Coney Barrett, brought the high court’s conservative makeup to six against three liberal-leaning justices. During his term in office, Mr Trump appointed two other conservative judges, Neil Gorsuch and Brett Kavanaugh.
Is Roe v Wade constitutional?
The ruling determines that the US Constitution protects a woman’s right to an abortion without excessive government intervention. A 1992 Supreme Court ruling in Planned Parenthood v Casey upheld the “essential holding” in the Roe ruling and prohibited legal constrictions that constitute an “undue burden” on abortion access.
On 20 January, the high court declined abortion providers’ request to intervene in an ongoing legal challenge to a Texas law banning most abortions at six weeks or pregnancy, before most women know they are prenant.
Abortion rights advocates hoped that the Supreme Court would direct the case to federal district court, where a previous ruling had blocked the law. Following the court’s decline to intervene in the challenge to the Texas law, which undercuts Roe protections, Republican legislators in states like Oklahoma introduced several restrictive bills that mirror the Texas law or eliminate access entirely.
What did Roe v Wade establish?
The ruling from Roe v Wade established federal protections for women who wish to have an abortion.
The decision ultimately gave women total autonomy to terminate a pregnancy during the first trimester, and allowed some state influence over abortions in the second and third trimesters, though a series of restrictions imposed on the state level – many of which have been challenged in courts – have sought to undermine abortion care.
The court’s opinion in Roe v Wade established that choosing to have an abortion is ultimately an issue of Americans’ right to privacy, which they ruled was an element of the liberty guaranteed by the 14 Amendment of the US Constitution.
That right to privacy is not absolute; the court established the differences in abortion rights based on trimesters to assure states could maintain medical standards and safeguard health.
Then as now, advocates opposing abortion attempted to argue that life begins at conception. The court disagrees, ultimately saying that the US Constitution’s use of “person” in establishing inalienable rights did not represent fetuses.
Was Roe v Wade overturned?
An unprecedented leaked draft opinion from conservative Justice Samuel Alito – first reported by Politico – indicates that the court’s conservative majority will vote to overturn Roe and Casey.
“We hold that Roe and Casey must be overruled,” he wrote in a draft of an opinion dated 10 February. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.
However, until the high court reaches that decision, Roe v Wade is still the law of the land.
There are at least 13 states with so-called “trigger laws” that would ban abortion should Roe be overturned, and at least 26 states that are likely to ban abortion quickly should that power return to states.
Oklahoma’s Republican Governor Kevin Stitt, who has pledged to “outlaw abortion” in the state, has signed several restrictive bills into law, including bans on abortion at six weeks of pregnancy and a ban on all abortions after fertilisation, the nation’s most severe law, effectively banning all abortions in the state.
In Idaho, the first state to approve an abortion ban mirroring the Texas law, the state’s Supreme Court temporarily blocked it following a legal challenge from Planned Parenthood. Both Idaho’s governor and the state’s attorney general have suggested that the ban is unconstitutional.
A sweeping anti-abortion law in Kentucky also is facing legal challenges that have temporarily blocked its enforcement.
