In a judgment that will transform America’s political, legal and social landscape, the United States’ (US) Supreme Court, on Friday, struck down the historic Roe v Wade judgment that had institutionalised abortion-related protections in the country.
Women in America no longer have the fundamental right to seek an abortion, with the verdict opening the doors for states to impose an outright ban on abortion or severely curtail it. Minutes after the judgment, Missouri became the first American state to ban abortion.
The SC verdict drew widespread criticism, from dissenters on the bench, the President, Democrats, and a wide constellation of women, reproductive health, privacy, civil liberties, and human rights groups who framed it as an unprecedented attack on a woman’s right to choose, exercise autonomy and control over her own body, women’s health, and the broader right to privacy.
Three dissenting judges on the bench said the decision took away the woman’s right to be an equal and free citizen in the country.
Terming the verdict a “tragic error”, President Joe Biden said the court had expressly taken away a fundamental right. He said this would have “real and immediate consequences”, jeopardising the women’s right to health and forcing her to have children even in cases of rape and incest. “It just stuns me..it is cruel…The court is taking America back 150 years.”
Biden, however, said the fight was not over; he would do all that was possible within the sphere of executive action to protect women’s rights, including the right to travel to states where abortion was legal; and urged voters to turn out in elections this November to ensure a nationwide federal law to codify Roe v Wade protections to offset the judicial verdict.
Case and judgment
The judgment was triggered by a case which involved a Mississippi legislation that banned abortion beyond 15 weeks.
Five conservative judges on the bench — Samuel A Alito Jr, Clarence Thomas, Neil M Gorsuch, Bret M Kavanaugh and Amy Coney Barrett (the last three were nominated by Donald Trump) — not only upheld the Mississippi law but also struck down the Roe V Wade judgment of 1973 and a subsequent judgment that built on it, Casey v Planned Parenthood of 1992.
Chief Justice John Roberts sided with his fellow conservative judges in favour of upholding the Mississippi law, but argued for judicial restraint and opposed the outright reversal of the right to abort and striking down of Roe v Wade.
The majority verdict held, “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.”
The five judges said that the right to abortion was not embedded in the Constitution and therefore did not have constitutional protection; that it was not rooted in the “nation’s history and tradition”; and that it was not a part of an entrenched broader right such as the right to autonomy. It also dismissed the need to respect judicial precedent in this regard. “Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.”
Justice Thomas, in a concurring judgment, also called for a re-look at other judicial precedents which provide the right to contraception, same-sex relationships and same-sex marriages.
In a powerful dissent, the three liberal judges on the bench — Stephen Breyer, Sonia Sotomayor and Elena Kagan — said, “One result of today’s decision is certain: the curtailment of women’s rights and of their status as free and equal citizens”.
“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare…The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”
In early May, Politico had first published a leaked draft of the majority opinion. This had triggered widespread concern — opinion polls show that most Americans oppose an outright ban on abortion and supported Roe V Wade — and led to a Democratic effort in the US Congress to codify the protections embedded in Roe V Wade. But the legislative effort failed to pass in a divided Senate.
The reversal of Roe
The Roe v Wade judgment of 1973 had declared abortion to be a fundamental right; located it within the right to privacy; and advocated it on the grounds that having unwanted children may force upon women a distressful life, cause psychological harm and tax her health, among other reasons.
The 1973 judgment had, however, said that abortion was not an absolute right and sought to balance the right to maternal health and foetal life by creating a trimester system — in the first trimester, states couldn’t impose any restrictions on abortion; in the second trimester, states could impose narrow restrictions to protect the mother’s health; and in the third trimester, which the court saw as the state when the foetus became viable, it allowed for legal prohibition of abortion.
In a subsequent 1992 case, the SC upheld the principle that women could abort before foetal viability without undue state interference, but did away with the trimester framework — and underlined viability kicked in around 23-24 weeks.
This has been the broad practice regarding abortion in the US at present, even though, in recent years, Republican activists, legislators and governors have made a strong push to limit abortion rights.
Friday’s judgment buries this entire framework and now empowers states to ban or circumscribe abortions if they choose to do so at any stage. This will lead to what many see as the legal Balkanisation of the country on the issue. At least 20 states, all Republican-governed states, are expected to do in a matter of days or weeks and nearly a dozen have automatic triggers to ban the procedure once the judgment was overruled. The fate of abortion in ten other states is uncertain.
In Democratic-dominated states, abortion rights will remain and may even be expanded.
In his remarks, President Biden said that court had not banned travel of women to states where abortion is legal, and he would do all that was within his power to ensure that the right of women to travel, to access medication, contraception was protected.
He said that only a federal law, through Congressional action, could restore protections embedded in Roe v Wade and it was time for voters to make their voices heard in the midterms in November. “Roe is in the ballot. Personal freedom is on the ballot. Privacy is on the ballot. Liberty is on the ballot.”
