Court and Constitution: Abortion Rights in America

On Friday morning, upon finding out the Supreme Court’s schedule for the day, the staff at Texas’ largest abortion clinic knew this would be the last hours in which abortions were a legal medical procedure in their state. Several trigger laws would immediately criminalize abortion as soon as Roe v. Wade was overturned. The draft of the Supreme Court’s majority decision on a Mississippi abortion case had been leaked on May 2nd and after nationwide demonstrations against and in support of the ruling, Roe v. Wade (1973) was overturned and the constitutional right to abortion removed. Each state is in charge of making its laws on abortion.

Since May the staff at Houston’s abortion clinic worked quickly. Their mission - to help as many patients as possible by doing ultrasounds, administering abortion pills after thorough consultations, and if necessary, performing surgical abortions. The New Yorker captured the moment the ruling was announced. It was 9:11 a.m, and the surgical abortions had not yet started. After the initial shock, a staff member entered the waiting room and having wiped her tears, she announced to the women who were waiting their turn, “Ladies, I’m so sorry to tell you that the law for abortion has been overturned”. The patients had to leave without accessing a medical procedure that had been legal since 1973. Some left in tears, others in silence. Who are Roe and Wade? And what are the implications of the Supreme Court’s ruling? In 1973, Ms. McCorvey placed charges against the state of Texas because she was not able access to abortion. There was no nationwide legislation on abortion, and so each state had its own laws, but her attorneys argued that the constitutional right to privacy extended to a woman’s right to decide what should happen to her body. Ms. McCorvey should decide whether or not she continued her pregnancy. She was given the pseudonym ‘Jane Roe’ to protect her identity. The Texan District Court ruled in Ms Roe’s favour. The state of Texas appealed to the Supreme Court. Wade, the district attorney of Dallas County, acted as the plaintiff.

The Supreme Court agreed with the District Court that the Constitution makes no explicit mention of a right to abortion, but that the privacy “encompass[es] a woman’s decision whether or not to terminate her pregnancy” (Justice Blackmun, Ruling of Roe v Wade, 1973). The Supreme Court had recognized privacy as an implicit right, inferred from the Ninth and Fourteenth Amendments to the Constitution. The Court acknowledged that some regulation is appropriate because states have an interest in protecting human life, including unborn life, so states were allowed to regulate abortion after fetal viability. This was reaffirmed in Planned Parenthood v. Casey in 1992.

Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, Sonia Sotomayor (sitting) Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett. Washington, 2021.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives”, Justice Samuel Alito wrote in the majority opinion on the Mississippi abortion case, Dobbs v. Jackson Women's Health Organization. Justice Alito writes that Roe v. Wade must be overruled because “the Constitution makes no reference to abortion”. Hamilton, one of the founding fathers, predicted Alito’s reaction. He was worried that listing some rights in the Constitution would provide a dangerous pretext for some to claim that rights that are not explicitly mentioned should not be protected. There are many rights that are not explicitly mentioned in the Constitution, simply because many issues did not exist at the time. In addition to this, the founders did not want the Constitution to be a step-by-step manual that would regulate every aspect of citizens’ lives, as Hamilton explains in the Federalist Papers (1788).

Moreover, the U.S. court system operates under the so-called stare decisis principle, which dictates that the Court must strongly respect precedent; past rulings. This is essential to maintain the Court’s legitimacy through a consistent, and logical interpretation of the Constitution. Creating a new precedent is justified when dramatic changes in society provide a reason to reconsider past interpretations. However, in this case, the Court had recognized implicit rights inferred from the right to privacy in numerous cases, and there have not been meaningful societal changes relevant to the case that suggest that a different reading is appropriate. In fact, regular polling since 1989 reveals that the share of Americans wanting to overturn the case has never risen above 36% (SSRS, CNN, 2022). Revoking the right to abortion is contrary to what the majority of the American public wants. A poll in January found that 69% of Americans feel that Roe v. Wade must be upheld. The move is also strikingly out of step with the rest of the world. More and more countries have legalized abortion, and only three have curtailed the right in the past 30 years. The decision will transform women's reproductive health in the U.S..   Without the possibility of safely ending a pregnancy before the third month, many women will risk their lives. A nationwide ban on the procedure would lead to a 21-per-cent rise in pregnancy-related deaths. Already, 21 states have laws that ban abortion or are planning to do so soon, according to the Gutmacher Institute. Florida, Indiana, Montana and Nebraska will likely enact such laws soon (Gutmacher Institute, 2022). Worldwide at least 22,800 women die every year as a result of unsafe abortion. Two and seven million women survive with long-term damage. The restriction of liberty and the health risks the ruling presents make it the most serious Supreme Court decision in decades. It “fall[s] on the poorest women in our country”, Senator Warren decried, as women lacking financial resources will not be able to travel to another state to safely access the procedure.

Before Roe, many women sought out illegal dangerous abortions. “We won’t go back” remains true. Today, abortion pills - mifepristone and misoprostol - can be prescribed via telemedicine and be delivered by mail, and can also be prescribed for other issues. The pills are ninety-five to ninety-eight per cent effective in ending pregnancies up to eleven weeks, which represent ninety per cent of nationwide abortions. But in nineteen states it is illegal for doctors to assist abortions via telemedicine. It remains possible to order and acquire abortion pills - ‘Aid Access’ for example provides abortion pills to women in counrties where abortion is banned - but women will face criminalization. Louisiana passed a law that punishes sending abortion pills with up to six months in prison. Anyone who provides help or comes into significant contact with a pregnancy that does not end well is in danger. Family, friends, doctors, clinic workers and volunteers. So the primary threat to people seeking abortions despite bans is surveillance and criminalization of state governments. Abortion pills are effective and most importantly safe - when conducted with clinical guidance and follow-up care. Now many women will have to choose between risking their freedom and risking their health by taking the pills without medical advice.

How can our country, which prides itself on protecting individual rights, end up with its highest Court restricting bodily autonomy? Donald Trump nominated three of the five Justices who voted to overturn Roe. Yet, when Justices Kavanaugh and Gorusch were in the confirmation process, they both insisted that they wanted to respect and support the Court’s past decisions. Republican Senator Susan Collins affirms that the decision is “inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me”. But the overturn of Roe v Wade is not an arbitrary or sudden decision. It is the result of a decades-long effort to return more power to the states. Former Vice President Mike Pence rejoices that "a new arena in the cause of life has emerged” and that “all who cherish the sanctity of life [ ] will take the defense of the unborn and the support for women in crisis pregnancy centers to every state in America”.

Pro-life protest. Washington, May 2022.

A restriction of the freedom and autonomy of any part of the population affects all - on a moral level, and because of the danger it represents to other rights and freedoms. Other rights that are inferred from the right to privacy might also be challenged. Same-sex marriage is one of them. So is the right to access contraception. So as we deplore the state of individual liberties and rights in other parts of the world, the Supreme Court is reminding us that there is still much work to be done at home. While the next legal and political round for abortion rights remains uncertain, the corporate sector is taking action. Airbnb, Amazon, Apple, Bumble, Dick’s Sporting Goods, Disney, Goldman Sachs, JPMorgan, Levi Strauss & Co., Microsoft, Netflix, Patagonia, Reddit, Salesforce and Yelp, and many more will cover their staff’s abortion-related travel fees. Some members of Congress want to pass legislation that codifies Roe v. Wade. For such a law to pass, Democrats need not only retain control of the House of Representatives but also gain a majority in the Senate. The upcoming November midterms are thus an important moment. There has been a great deal of change since the Constitution was written. What has not changed is the general view that America should promote freedom and equality. The rejection of important and painfully achieved progress is a step in the opposite direction.

Written by Lia Goldman.