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Abortion in the US Post-Roe

Introduction


The overturning of Roe v Wade in the United States in 2022 constitutes one of the most important legal judgments from the Supreme Court of the United States in our lifetime. After decades of feminist campaigns to facilitate access to the procedure, we are currently witnessing a scaling back of women’s right to bodily autonomy.


Although this decision was perhaps to be expected given the intensity of anti-abortion campaigns in the United States and the appointment of Republican judges during the Trump presidency, it still came as a shock to feminists across the world.


The present article will discuss how the Supreme Court of the United States overturned the right to abortion, how this leaves abortion rights up to individual states, and how abortion bans can and often do go beyond simply restricting access to this type of medical care, and has the potential to harm women’s reproductive health in other ways.


How the Dobbs Decision Overturned Abortion Rights in the US


On June 24th 2022, in the Dobbs v Jackson Women’s Health Organisation (JWHO)[1], the US Supreme Court removed the constitutional right to abortion, “abandoning almost 50 years of precedent, and paving the way for the states to ban abortion”[2]. This decision overturned the landmark Roe v Wade[3] decision and crucially was the first time in history that the Supreme Court removed a fundamental right.


In the case of Dobbs v JWHO, the Supreme court was led to address whether the Constitution protected the right to an abortion in the US. As such, the Supreme Court reviewed the constitutionality of Mississippi's Gestational Age Act which bans most abortions past the 15 weeks mark with several exceptions including for medical emergencies and fetal abnormalities. The Supreme Court, in a very controversial move, concluded that the Constitution did not protect the right to an abortion, thus overturning landmark cases Roe v Wade 1973[4] and Planned Parenthood v Casey 1992.[5]


Indeed, Justice Alito alleged that Roe was “egregiously wrong from the start” because the Constitution does not refer to abortion and the right to such a procedure is not protected by constitutional provisions and by extension, by the Constitution itself. The earlier decisions of Roe and Casey recognised that a right to privacy (Fourteenth Amendment of the Constitution) could encompass abortion whereas the Court in Dobbs deemed these precedents as “remarkably loose in [their] treatment of the constitutional text” and “hav[ing] enflamed debate and deepened division”[6]. As such, the Supreme Court is taking a very light approach and an unsatisfactory one too in the sense that, in addition to the controversy surrounding the outcome of Dobbs, the Court decided not to address the right to an abortion in this decision and leave it for another case. It would seem that, had the Court wanted to be thorough and clear in terms of the trends surrounding abortion rights in the US, it should have made a decision on the right to an abortion rather than overturning Roe v Wade. Such a loose outcome as to abortion rights, to borrow the terms of the Congressional Research Service, is dangerous and opens scope to individual states to amend their federal law or to take steps in terms of their abortion rights, which has been the case since the Dobbs decision of 2022.


Why Abortion Rights are Left to Individual States


“For 50 years, women have relied on their constitutional right to make their own medical decisions [...] That means it’s now up to the states to determine whether women get reproductive health care”[7].


Due to the federal system which is operated in the US, states will have to derive their own law and decide whether to amend their federal law as a result. They will therefore decide whether to ban abortion or not in their state, unless Congress adopts federal abortion protections or restrictions.[8] Such a ban would force hundreds of women to travel to other states to access abortion care, unless individual states ban this type of travel as well. This is a very grave violation of women’s rights, hence the outrage that was sparked following the decision.


“Dobbs could also prompt consideration of federal abortion legislation”[9]. As of mid-June 2022, 13 states had adopted “trigger laws” which prohibit abortion and take effect as soon as the constitutional right to abortion is no longer recognised.


The current unfolding situation in the US is that of “conflict between states that seek to ban abortion and states that seek to protect it”[10]. Such a situation is dangerous for women’s rights because individual states have the ability to pass laws to ban abortion in their state, restricting access to this necessary medical procedure, and in doing so, influence other states to make similar decisions.


How the Overturning of Roe v Wade goes beyond criminalising abortion


A recent Bill proposed by the Arkansas state legislature, HB1174, was supposedly drafted “to add protections for unborn children”.[11] Section 1(a)(4) of this Bill appears to define human life as being “from the time of fertilization to the time of natural death”,[12] and in the following subsection (section 1(a)(5)), declares that “unborn children” (including fertilized eggs) “should be protected under the state homicide laws”. However, this Bill goes beyond criminalising seeking a surgical abortion procedure or abortion medication. It specifically criminalises “causing the death of an unborn child”[13], and gives personhood status to “an unborn child at any stage of development” (emphasis added).


Section 2(13)(B)(iv) explains that the Bill does not allow for prosecution for an “accidental miscarriage” (emphasis added).[14] The question becomes, then, what is an “accidental miscarriage”? As pointed out by journalist Jessica Valenti in her blog Abortion, Every Day, this Bill from the Arkansas legislator could “allow prosecutors to go after women who they decide somehow caused their miscarriages - or even arrest women who use emergency contraception or IVF”.[15] Valenti then highlights how women may “cause” their own miscarriages, e.g., by heavy lifting drug use, or even suicide attempts. It is important to note that according to the Code of Arkansas, an offence of Capital Murder exists which is punishable by the death penalty, and it includes causing “the death of any person” with a “premeditated and deliberate purpose of causing the death of another person”.[16] It may appear alarmist to suggest that women may face the death penalty for “causing” a miscarriage, or for obtaining an illegal abortion, but given the structure of the law in Arkansas, it appears as though this may be the case.


Additionally, beyond Arkansas, the New York Times has reported that abortion restrictions have created additional hurdles for women seeking care for miscarriages, ectopic pregnancies and miscarriages.[17] Newly implemented abortion restrictions have reportedly created situations whereby doctors had to evaluate how much bleeding was “too much” before being able to save a pregnant woman’s life, or if a foetus that was nearly deceased had to be “fully dead” or “mostly dead” before they could perform the life-saving procedure.


It is clear then, that abortion restrictions are not actually about protection, but about control. Additionally, even if the goal of these restrictions is to reduce the number of abortions taking place in individual states, restrictions do not appear to work. A study published pre-Roe reversal indicates that increasing restrictions to abortion access does not actually reduce the number of abortions.[18]


Conclusion


It is clear that the overturning of Roe v Wade in the United States has had, and will continue to have, a significant impact on women’s rights in America. The Dobbs decision has meant that individual states are now able to restrict abortion from the time of fertilisation, as exemplified by the Arkansas House Bill, and that women can now be criminalised for trying to exercise bodily autonomy. Restricting access to abortion is dangerous to women’s health and can result in restricted access to necessary medical care in emergency situations, like ectopic pregnancies. The federal government of the United States ought to implement a federal statute requiring states to provide basic access to abortion care across America to not only protect women’s rights, but women’s lives.

[1] Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 US (2022). [2] Center for Reproductive Rights, Dobbs v Jackson Women’s Health Organisation, <https://reproductiverights.org/case/scotus-mississippi-abortion-ban/> Accessed on 20th March 2023. [3] Roe v Wade, 410 US 113 (1973). [4] Roe v Wade, 410 US 113 (1973). [5] Planned Parenthood of Southeastern Pa v Casey, 505 US 833 (1992). [6] Congressional Research Service, Supreme Court Rules No constitutional Right to Abortion in Dobbs v Jackson Women’s Health Organization, <https://crsreports.congress.gov/product/pdf/LSB/LSB10768> Accessed on 20th March 2023. [7] Politico, It’s now up to the states: Republicans move to ban abortion after Roe falls, <https://www.politico.com/news/2022/06/24/states-abortion-laws-supreme-court-00042390> Accessed on 20th March 2023. [8] Politico, It’s now up to the states: Republicans move to ban abortion after Roe falls, <https://www.politico.com/news/2022/06/24/states-abortion-laws-supreme-court-00042390> Accessed on 20th March 2023. [9] Congressional Research Service, Supreme Court Rules No constitutional Right to Abortion in Dobbs v Jackson Women’s Health Organization, <https://crsreports.congress.gov/product/pdf/LSB/LSB10768> Accessed on 20th March 2023. [10] Boston Review, How the Federal Government Can Fight Abortion Bans, <https://www.bostonreview.net/articles/how-the-federal-government-can-fight-abortion-bans/> Accessed on 20th March 2023. [11]To Add Protections for Unborn Children by Allowing Prosecution when a Person Causes the Death of an Unborn Child; To Repeal Laws that May Allow a Person to Pressure a Pregnant Woman to Get an Abortion; and To Declare an Emergency HB1174 (AK). [12] ibid. [13] ibid s 1(b). [14] ibid n11. [15] Jessica Valenti, Abortion, Every Day (Substack, 14 March 2023) <https://jessica.substack.com/p/abortion-every-day-31423?utm_source=%2Fsearch%2Fabortion%252C%2520every%2520day%2520arkansas&utm_medium=reader2#details> accessed 21 March 2023. [16] Code of Arkansas Title 5 Chapter 10 s 5-10-101 Capital Murder. [17] Kate Zernike, “Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say” (10 September 2022, New York Times) <https://www.nytimes.com/2022/09/10/us/abortion-bans-medical-care-women.html> accessed 21 March 2023. [18] Elizabeth Nash & Joerg Dreweke, “The U.S. Abortion Rate Continues to Drop: Once Again, State Abortion Restrictions Are Not the Main Driver” (2019) 22 Guttmacher Policy Review 41 <https://www.guttmacher.org/sites/default/files/article_files/gpr2204119.pdf?utm_source=redwood%20city%20pulse&utm_campaign=redwood%20city%20pulse%3A%20outbound&utm_medium=referral> accessed 21 March 2023.

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