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Tuesday, January 25, 2022

Explained: What threatens the landmark abortions rights Roe versus Wade judgment in US?

The so-called Texas Heartbeat Act, or S.B. 8 law bans abortion after over six weeks of pregnancy, which for many women is too soon since most do not know they are pregnant within this time period.

By: Explained Desk | New Delhi |
Updated: December 3, 2021 6:22:35 pm
Kersha Deibel, CEO of Planned Parenthood Southwest Ohio, speaks at a pro-choice rally as the United States Supreme Court justices hear arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health, in Cincinatti, Ohio. (Reuters)

On Wednesday, the US Supreme Court, which has a conservative majority, signalled that they might overturn the 1973 landmark Roe versus Wade judgment that decriminalised abortion in the country and said that undue state restrictions on abortion rights were unconstitutional.

Another landmark judgment regarding abortion rights in the US was made in 1992 in Planned Parenthood versus Casey, in which the Supreme Court reaffirmed Roe versus Wade. This case was a response to some provisions of the Pennsylvania Abortion Control Act, 1982, which required a waiting period, notice by a spouse and parental consent for undergoing abortion for minors.

In what context did the Supreme Court signal that Roe versus Wade may be overturned?

The court was hearing oral arguments related to the Dobbs versus Jackson Women’s Health Organization case, which is considered to be the most important abortion rights case since Roe versus Wade.

The case concerns a law passed in the state of Mississippi in 2018 called the “Gestational Age Act”, which aims to ban abortions after 15 weeks. It provides exceptions in the case of medical emergencies only and does not allow for abortions even in the case of rape of incest.

The exceptions allow an abortion when it is necessary to “preserve the life of a pregnant woman” or prevent “a serious risk of substantial and irreversible impairment of a major bodily function,” and where the fetus has a condition that is “incompatible with life outside the womb.”

Before this law, abortions could be performed in the state up to 20 weeks.

Essentially, the state of Mississippi wants to ban abortions and also overturn Roe versus Wade. After it was passed, the law was blocked by two federal courts.

Who challenged the Mississippi law?

The Mississippi law was challenged by Jackson Women’s Health organisation, which is the state’s only abortion clinic. The case is considered to be a direct challenge to the judgment of Roe versus Wade.

In May, the Supreme Court decided to hear the challenge against the law, but a decision will be made no sooner than 2022. Mississippi is not the only state where abortion rights have ignited a debate about abortion rights.

In September this year, the Supreme Court voted against banning the anti-abortion law in the country’s second largest state of Texas, which is governed by Republicans.

The so-called Texas Heartbeat Act, or S.B. 8 law bans abortion after over six weeks of pregnancy, which for many women is too soon since most do not know they are pregnant within this time period. Specifically the law says that an abortion cannot be carried out once a doctor is able to detect cardiac activity in the embryo.

Roe versus Wade

The federal action against the District Attorney of Texas’ Dallas County was brought forward in 1970 by Jane Roe, a pregnant single woman who was living in Texas. Roe brought forward a class action suit challenging the constitutionality of the Texas criminal abortion laws, which prohibited abortion except in cases where termination of pregnancy was necessary to save the mother’s life.

In the class-action suit, Roe alleged that she wished to terminate her pregnancy through an abortion, which should be “performed by a competent, licensed physician, under safe, clinical conditions”. She added that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened if her pregnancy was continued and that she could not afford to travel to another jurisdiction in order to get a “legal” abortion. She therefore claimed that the Texas laws were “unconstitutionally vague” and that they abridged her right to privacy.

At the time, a separate but similar action was filed by a childless married couple who wanted that in the event the wife becomes pregnant, she should be allowed to terminate her pregnancy. A three-judge District Court heard the matter together and it held that the right to whether or not to have children was protected by the Ninth-Fourteenth Amendments of the US and that the Texas criminal abortion statutes were “unconstitutionally vague and overbroad”.

On January 22, 1973, in a 7-2 decision, the US Supreme Court repealed the Texas laws that banned abortions and legalised abortions in all 50 states.

In his delivery of the opinion of the Court, Justice Blackman said at the time, “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion…”.

Why the conservative-liberal divide in the Supreme Court matters

Since the nine-judge bench of the Supreme Court has had a conservative majority, some Republican states have been trying to introduce legislation that restricts abortion. Significantly, in the US, federal judges can serve for life, which means that their terms only end if they resign, die or are impeached and convicted by Congress.

Because these judges can serve for life, the liberal-conservative divide in the federal judiciary becomes highly consequential for decades. Out of the nine judges in the court, six are conservative. One among these is conservative Amy Coney Barrett who replaced Ruth Bader Ginsburg who died last year and supported abortion rights.

Barrett, who is a Catholic, has a clear judicial record of being against abortion access, which has made her popular among religious conservatives pushing to overturn Roe versus Wade.

Before Ginsburg’s death, the nine-member bench had a conservative majority of five judges, with four progressives.

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