Roe v. Wade — What’s the Deal?
If you have been paying attention to the news, you will know by now that the Supreme Court of the United States has overturned Roe v. Wade, a landmark case that guaranteed the right to seek an abortion nationwide. The case had been settled precedent for nearly half a century, but as we are going to explore, common law is a fragile thing that should not be taken for granted as settled.
The Supreme Court of the United States is the highest judicial body in that country. Its main purview is the interpretation and application of the United States Constitution to cases that come before it. Simply put, and poignantly, in this case, this body has the power to decide whether modern law and precedent stand up against a document that is 250 years old. We in Australia have a similar body, the High Court, that interprets and applies the Constitution to cases brought before it, but our Constitution lacks a Bill of Rights, and our High Court has been historically rather reluctant to read implied rights into the Constitution.
Roe v. Wade was a case decided in January of 1973. The facts of the case are:
Norma McCorvey, who will be referred to henceforth under the legal pseudonym Jane Roe, was seeking an abortion, but at the time, the state of Texas, in which she resided, only allowed this procedure if the mother’s life was in danger. Roe’s attorneys thus filed suit against the local district attorney, Henry Wade, arguing that Texas’ legislation was unconstitutional. Another case was filed concurrently, Does v. Wade, on behalf of McCorvey and her husband.
A panel of three judges in the US District Court for Northern Texas, a lower court in the United States federal hierarchy (District Courts -> Circuit Courts -> Supreme Court), ruled in Roe’s favour. This panel found that the Texas legislation was in violation of the Ninth Amendment to the US Constitution, which had been previously interpreted in Griswold v. Connecticut [1965] to include a right to privacy. However. the Court at that time didn’t grant an injunction, and dismissed the joint case of Does v. Wade on the grounds that they didn’t have standing. A lack of standing, in layman’s terms, means that the court found that while Roe herself was affected by the legislation, the married couple together were not.
While the case was appealed to the Supreme Court, it was initially heard so the Court could rule on questions of jurisdiction. That is, which courts had the power to hear the case. Initially, the verdict in the case was to be authored by Justice Harry Blackmun, who was seen by his colleagues as the least controversial choice, but as he could not find a ruling that was sweeping enough in classing abortion as an issue of privacy, he instead ordered that the case be reargued. The case was reargued in 1972, and the Court took its time over the summer with deliberations. Eventually, though, a 7–2 verdict found in Roe’s favour, that the right to privacy, whether it existed under the Ninth Amendment (that no enumerated right can be construed to impact another), or the Fourteenth Amendment (that no state can make laws that impact the rights of citizens), did in fact extend to a woman’s decision to get an abortion.
Despite nearly fifty years having passed since the ruling was made, no President or Congress has made efforts to codify it into statute law, despite promises to do so. In layman’s terms, statute law is law that is passed by a legislative body; the Parliament of Australia in our case, and the United States Congress in this case. Roe, however, existed as common law, that which is created by judges. Codification is when a legislative body writes judge-made law into statute. Whether it was a lack of political will, a desire to avoid controversy, or the belief that subsequent courts would respect stare decisis (the legal principle that superior court judges uphold and stand by decisions made by their predecessors), abortion remained a common law right. That is, until today.
The case the Supreme Court ruled on today, Dobbs v. Jackson Women’s Health Organisation, was filed to challenge a Mississippi law banning most abortions after the 15th week of pregnancy. Lower courts had issued injunctions preventing the enforcement of the law, based on the ruling in the 1993 case Planned Parenthood v. Casey, which prevented the banning of abortion before medical viability outside the womb, considered to be 24 weeks. However, the ideology of the Supreme Court has shifted quite drastically to the right from the days of the Courts that decided on Roe and Casey. With a conservative majority after 2020, conservative and religious groups, perhaps rightly so, saw Dobbs as the perfect vehicle with which to overturn these cases.
Despite twenty states passing legislation to outlaw abortion immediately in the event Roe and Casey were overturned, Dobbs remained under the radar until Texas passed a law in May of 2021 banning abortion after a foetal heartbeat can be detected. This caused the national profile of the case to rise significantly, with record numbers of interested parties and organisations filing amicus curiae (friend of the court) briefs, which do not attach them to a case but allow them to assist the Court on points of law in the case they are filed for.
In March, to the delight of conservative and evangelical groups, and to the horror of liberals, women’s rights advocates, and associated parties, a draft opinion from Justice Samuel Alito was leaked, indicating that the Supreme Court, after arguments being heard in December, intended to rule in favour of Dobbs, overturning Roe and Casey, and in the same vein, placing Lawrence v. Texas (which struck anti-sodomy laws off the books), Obergefell v. Hodges (which legalised same-sex marriage federally), and Griswold v. Connecticut (finding a Constitutional right to privacy) on the chopping block. As we just learned, this leaked draft was correct, right down to Justice Clarence Thomas opining that the Supreme Court should reconsider the above-mentioned cases. So, in a 6–3 ruling (CJ Roberts, JJ Alito, Thomas, Gorsuch, Kavanaugh, Barrett in the majority; JJ Sotomayor, Kagan, Jackson in the minority), the rights of people with uteruses were set back fifty years.
So, where to from here? It’s hard to say. The Democrats have said that they would pass legislation codifying Roe, but that didn’t happen. If they were hypothetically to pass legislation safeguarding the right to seek an abortion nationwide, it is reasonable to speculate that a case would be brought forth challenging such legislation and result in a similar outcome resting on Dobbs as precedent.
Life has got much harder for poorer people and those who do not live in states that will safeguard the right to an abortion. While it is undeniable that this ruling is dangerous to women, it is important to highlight that the fallout will disproportionately affect people of colour and trans people. It will result in those who can’t afford to travel to a state where abortion is legal seeking back-alley abortions, which will kill people. In some states, the safeguarding of abortion will hinge on whether they can keep Democratic leadership in November, with midterms on the horizon and Republican gains all but certain. Of course, those connected to the politicians, groups, and Justices that take joy in this decision will not be affected, because as we all know, the only moral abortion is their abortion, and they have the money to go interstate or overseas and discretely undergo the procedure.
I must caution, however, that this ruling has opened Pandora’s box. With this first overturning of rights many have taken for granted, the conservatives and evangelicals have only just begun their reactionary, regressive fight. The rights of the LGBTQ+ community are under threat. The rights of people of colour are under greater threat. The right to privacy people take for granted can no longer be guaranteed. I, for one, don’t have an answer as to what can be done in the name of direct action.
Please consider donating to your local Planned Parenthood. They do important work beyond abortion, providing family planning advice, STI testing, contraceptives, and gynaecological consultation.
Please also consider donating to the National Abortion Federation. They do crucial work to help connect people seeking an abortion with providers who can assist them in a safe, legal manner.
