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Explained: What is Roe v. Wade which the US Supreme Court overturned, and why is it significant?

The landmark 1973 Roe v. Wade judgment that legalised abortion in the US has been struck down by the Supreme Court's conservative majority. Why is this decision important? What is the position on abortion in India?

Written by Apurva Vishwanath , Edited by Explained Desk | New Delhi |
June 24, 2022 8:51:56 pm
Abortion-rights protesters following Supreme Court's decision to overturn Roe v. Wade, federally protected right to abortion, in Washington, Friday, June 24, 2022. (AP Photo/Gemunu Amarasinghe)

The United States Supreme Court on Friday (June 24) overturned by a 6-3 majority ‘Roe v. Wade’, the court’s landmark 1973 judgment that made abortion a constitutional right.

The decision — an early draft of which was scooped by ‘Politico’ on May 3 — will transform life for women in America. Near total bans on abortion will come into effect in about half of the country’s states.

Soon after the Supreme Court decision Friday, the attorney general of Missouri issued an opinion that activated the state’s “trigger” law, effectively ending abortion except in medical emergencies, ‘The New York Times’ reported. Trigger laws were set to come into effect in several other states as well.

What is ‘Roe v. Wade’?

The case is sometimes referred to simply as “Roe”, the listed name of the 22-year-old plaintiff, Norma McCorvey. ‘Wade’ was the defendant Henry Wade, the Dallas County (Texas) district attorney at the time.

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‘Roe’ struck down laws that made abortion illegal in several states, and ruled that abortion would be allowed up to the point of foetal viability, that is, the time after which a foetus can survive outside the womb.

Foetal viability was around 28 weeks (7 months) at the time of the ‘Roe’ judgment nearly 50 years ago; experts now agree that advances in medicine have brought the threshold down to 23 or 24 weeks (6 months or a little less), and newer studies show this could be further pegged at 22 weeks. An average pregnancy lasts about 40 weeks.

Foetal viability is often seen as the point at which the rights of the woman can be separated from the rights of the unborn foetus. The length of a pregnancy is commonly calculated from the start of a person’s most recent menstrual period. Since many people identify pregnancy only after the sixth week, pre-viability timelines leave women with very little time and opportunity to make a decision to abort.

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Abortion laws across the world rely on this metric but those opposing abortions argue that this is an arbitrary timeframe that legislation and the court in ‘Roe’ adopted.

What has the Supreme Court said on Roe v Wade?

Details of the judgment were not immediately available, but in the draft opinion obtained by ‘Politico’, Justice Samuel Alito, who wrote the opinion, had rejected ‘Roe’ as “egregiously wrong from the start”, and held that both ‘Roe’ and ‘Casey’ — another landmark abortion judgment of the court from 1992 that reaffirmed the central tenet of ‘Roe’, that women have the right to terminate pregnancies up to the point of foetal viability — “must be overruled”.

Justice Alito’s majority opinion — which had been supported by four other conservative justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, was written in ‘Thomas E Dobbs, State Health Officer of the Mississippi Department of Health vs. Jackson Women’s Health Organisation’, popularly known as the “Mississippi case”.

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A sixth justice, Chief Justice John G Roberts Jr — whose views were not known at the time of the ‘Politico’ scoop was published — has also voted to overturn ‘Roe’. Three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — dissented.

According to the majority opinion quoted by Politico, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

‘Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” its reasoning was “exceptionally weak,” and the decision has had “damaging consequences”, the draft ruling said.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote.

What is the Mississippi law?

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In 2018, the Republican-majority legislature of the state of Mississippi banned most abortions after 15 weeks — much before foetal viability, and sooner than was allowed by ‘Roe’ — throwing a direct challenge to the 1973 judgment.

The then last remaining abortion clinic in the state, Jackson Women’s Health Organisation, which provided abortion services up to 16 weeks of pregnancy, challenged the law, and in November that year, US District Judge Carlton Reeves struck it down, ruling that it “unequivocally” violated the constitutional rights of women.

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On March 19, 2019, then Republican Governor Phil Bryant signed the so-called “heartbeat” abortion law, an even more restrictive measure that banned most abortions once foetal cardiac activity could be detected — which is about six weeks. Bryant challenged the opponents of the law to sue: “If they do not believe in the sanctity of life, these that are in organisations like Planned Parenthood, we will have to fight that fight. But it is worth it,” The Associated Press reported at the time.

The heartbeat law said that physicians who performed an abortion after a foetal heartbeat was detected could have their medical licences revoked. The law made no exceptions for pregnancies caused by rape or incest.

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This law too was blocked by a district judge, and in February 2020, the 5th Circuit Court of Appeals in New Orleans agreed with the decision. In December 2019, the Circuit had also kept in place the block on the other — 2018 — law.

When the 2018 law — which banned abortion if “the probable gestational age of the unborn human” was determined to be more than 15 weeks, except in cases of medical emergencies or “a severe fetal abnormality” — reached the Supreme Court, there were indications in the hearings in December 2021 that the bench was likely to uphold it.

A decision in the matter was then expected in June or July 2022. It ultimately came on June 24.

Why is the decision of the Supreme Court important?

The issue of abortion has sharply split opinion among conservatives and liberals in the US for decades.

Until a few years ago, a challenge to ‘Roe v. Wade’ would have been unlikely to succeed, but the changes in the character of the Supreme Court following the appointments of conservative Justices Gorsuch, Kavanaugh, and Barrett during the Donald Trump presidency gave rise to a fresh spurt of litigation around the issue.

The clear conservative majority in the Supreme Court gave the conservatives their best chance for decades to overturn ‘Roe’.

‘The NYT’ had earlier reported that depending on how the court worded its final judgment, the overturning of ‘Roe’ could mean that legal abortion access would “effectively end for those living in much of the American South and Midwest, especially those who are poor”.

Liberal commentators have predicted “seismic” changes in American society as a result of the overturning of ‘Roe’. It will be a significant decision with ripples around the world as a victory for conservative right wing opinion.

What will happen in the US now?

Since there is no federal law protecting the right to abortion in the US, the overturning of ‘Roe’ leaves abortion laws entirely up to the states. Conservative states will likely bring back restrictive laws that prohibited abortions before the Supreme Court set the foetal viability standard in 1973.

The New York Times had earlier estimated that legislatures in 22 states would “almost certainly” move to ban or substantially restrict access to abortion, and poorer women would bear the brunt in most cases. The NYT report said that without the protection of ‘Roe’, the number of legal abortions in the US could fall by at least 14%, quoting research based on the effects of the closures of abortion clinics in Texas between 2013 and 2016.

Activists and progressive politicians have said that the availability of clinics, insurance payouts, are crucial issues that form part of the struggle of many women even with the backing of ‘Roe’. With this legal backing gone, access could become even harder.

What is the position on abortion in India?

India’s Medical Termination of Pregnancy Act, 1971 allows abortion until 20 weeks of pregnancy. Through an amendment in 2021, the ceiling for abortions was raised to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors, that too, with the approval of two registered doctors.

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In case of foetal disability, there is no limit to the timeline for abortion, but that is allowed by a medical board of specialist doctors set up by the governments of states and union territories.

In approximately 16 countries around the world, abortion is entirely prohibited and even criminalised. But several Catholic majority nations such as Ireland and Mexico have decriminalised abortion in the last decade.

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First published on: 24-06-2022 at 08:51:56 pm
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