Written by Shannon Atkins – Researcher on the Street Law Project
On the 22nd of January it would have been the 50th anniversary of the landmark case of Roe v Wade (1973) that solidified the constitutional right to access abortion within the USA. However, on the 24th of June 2022, Roe was overturned by 5 out of 9 Supreme Court Justices, ultimately changing the lives of pregnant people in America for the foreseeable future.
Dobbs v. Jackson Women's Health Organization was brought before the Supreme Court Justices to seek the end of the constitutional right to abortion. It was within the 14th amendment, the right to privacy, in which Roe was first decided. It gave freedom for a pregnant person to choose and have control over their own autonomy. In the judgement of Dobbs, the majority opinion of Justice Samuel Alito highlights how SCOTUS believe Roe to be wrong: ‘’That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” [Washington v. Glucksberg (1997).] “The right to abortion does not fall within this category’’ Justice Alito goes on to tell the court that the law now regards what once was a foetus, is now an ‘’unborn human being.’’ He enshrines, what essentially is for most early term abortions (pre 10 weeks gestation), a clump of cells, allowing each state to decide their own abortion laws.
What happened post DOBBS?
The moment the judgement was made, some states had trigger laws in place, making abortion completely illegal instantly or tightening restrictions. Up to date, thirteen states have a complete ban on abortion with no exception for rape, incest or risk to the parent’s health. Georgia enacted a ban on all abortions after 6 weeks gestation. Remember that gestation is tracked for the last menstrual cycle, meaning that most people don’t know they’re pregnant until around the 6-week mark. These blanket bans mean that some people must drive across state lines to access abortions with the chance of being prosecuted when returning to their state. Despite there being blanket bans, States such as Alaska and California have secured the right to abortion within their state law. Abortion is still legal in 21 states; however, it is limited to terms of viability, similar to the UK. Nevertheless, States get to choose the point of viability.
Issues Pregnant People in America are facing:
The overturning of Roe v Wade has now led to forced births, infant homicide, mental health issues and suicide. There will now be a risk to pregnant people’s lives as more ‘’back street’’ abortions are likely to be taking place. Yet, the people that lobbied this law will have access to abortion by having the financial means to cross state lines. It almost suggests that a pregnant person’s bodily autonomy is contingent on financial capacity. People on low income will suffer the most. They are likely to buy abortion medication online, which is unregulated and can carry a long prison sentence if caught. These unregulated abortions can cause complications for the pregnant person, causing excessive bleeding, infection, incomplete abortions and even death. Just because something is illegal, does not mean it will prevent it from occurring – it will just multiply the underground and dangerous abortions.
There have been some unofficial reports on social media platforms over the past year, of people suffering from miscarriages or ectopic pregnancies in ‘red’ states, which has reportedly left people in hospitals waiting for the natural termination to complete, as doctors are worried about their own liability when performing these procedures.
On the other hand, reported a few days ago by the Washington Post, a woman who fell pregnant prior to incarceration, is arguing that her foetus is being illegally detained due to its status as an ‘’unborn human being’’ under the constitution. I imagine that legal issues such as this are going to be prevalent in the future and open up floodgates due to poorly drafted law.
Roe was used as precedent for other life changing constitutional decisions by the Supreme Court, such as right to same sex marriage and inter-racial marriage. What was the enshrined constitutional right to privacy under the 14th amendment, allowed Roe to form the basis of these decisions. Some have argued that these constitutional rights are now threatened and could be overturned next. The overturning of Roe is not only affecting pregnant people across America, it is much wider than what was once thought. It seems that those who do not fit the normative means of a nuclear family are slowly being eroded from the American constitution.