Inside the Supreme Court of the United States: The decision of Roe v Wade in 2022 and broader implications

On Monday the 2nd of May 2022, news outlet ‘Politico’ shocked America and the rest of the world when a draft opinion from the Supreme Court was leaked, revealing that Roe v Wade would be struck down. Although this initially raised questions of motive and morals, as it is extremely rare for an important draft opinion to be leaked, the key issue for focus is the blatant restriction on women’s rights in the United States.

 

In 1973 the US Supreme Court ruled in Roe v Wade that the Constitution ‘protects a pregnant woman’s right to choose to have an abortion without excessive restriction’. Since this significant case, there has been ongoing debate about the legality, politics, morality and religious views of abortion. Crucially, the Supreme Court is currently deciding on the case Dobbs v Jackson Women’s Health Organisation, which is considering the constitutionality of the 2018 Mississippi state law banning abortions after 15 weeks. In light of this, some states, including Florida, Idaho, Kentucky, Oklahoma and Texas, have already taken steps to restrict access to abortion. Specifically, many of these states have banned abortions after six weeks of pregnancy, a point at which many women are not even aware they are pregnant.

 

The majority opinion was written by Justice Samuel A. Alito Jr, referring to historical conservative critiques, stated that “we hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. It seems outrageous that such a significant human right can be struck down by such a simple reference to constitutional provisions. Not only does this raise questions of the protection of rights, it also highlights fundamental legal and political problems within the United States.

 

A History of Abortion and Abortion Rights

 

The right to have an abortion is widely debated in almost every country around the world. Similar discussions arose in January 2021 when a near-total abortion ban came into play in Poland, suggesting a move backwards amidst debates for further progress for abortion rights. In light of this, there are several compelling arguments for more progressive abortions rights worldwide, which will be explored in depth here.

 

Firstly, the law in England and Wales remains that the continuation of a pregnancy is to be decided based on whether it would involve the ‘risk of injury to health’, for purposes of s1(a) or (b) of the Abortion Act 1967. In fact, modern medical practices suggest that in the majority of cases an abortion is actually safer than carrying a pregnancy to full term. As a result, safe abortion procedures benefit both the mental and physical health of the woman involved. In addition to this, evidence suggests that the negative mental health impacts are significantly more in cases of an unwanted pregnancy, compared with having an abortion. In England and Wales, a significant number of women, 1 in 3, seek out abortion services in their lifetime, making it the most common gynaecological procedure in the UK. In contrast, unsafe abortions worldwide result in around 47,000 deaths every year, the majority of which reside in countries with strict abortion laws. It seems likely that with America’s move towards restrictive abortion laws, there will be a greater amount of illegal and ‘backstreet’ abortions, many of which will not be as safe or regulated as current medical abortion procedures provided by proper medical staff.

 

Additionally, abortion is the only medical procedure governed by criminal law, explicitly denying women control of their bodies. The approach of the United States here can be very clearly contrasted with the Supreme Court of Canada who, in 1988, struck down the criminal code on abortion, noting it as unconstitutional. This can also be seen in the Abortion Legislation Act 2020 in New Zealand, which moved abortion procedures to be regulated under general health law, rather than it being a crime in the criminal sphere. The decriminalisation of abortion is something that England and Wales should also move towards, which is another discussion to be had, however from this is clear that the United States is far from such progress.

 

Furthermore, there are no compelling arguments to suggest that abortion should be outlawed. The argument presented by Justice Samuel Alito, namely that abortion is not provided for in the constitutional, is founded on no scientific or medical basis. The fact that this argument can be put forward by a man, with whom this significant change in the law will not impact, is astounding. Although both the mother and father of the foetus are involved, restrictive abortion rights will disproportionately impact women. Legally, a man can leave his child with no consequence, however if a woman were to leave her child it would be deemed ‘reckless abandonment’. From this legal standpoint, in addition to the fact that it is the woman who carries and gives birth to the baby, it is clear that this is an unfair balance of rights. This is an idea that Sheldon discusses in depth, as it is argued that women cannot fully participate in society on equal terms with men if they do not have control of their own body, calling this a “fundamental prerequisite for such full participation”.

 

Contrastingly, there are many compelling reasons as to why a woman may seek to have an abortion. This includes financial status, mental health impacts, age, relationship with the father, rape or assault, incest, or simply that it is not the right circumstances to have and raise a child. It seems that, in 2022 especially, personal autonomy and the right to make decisions about your own body should be respected without outdated limits on abortion. Beyond this, there are many other reasons that can be explored in depth, however for the purposes of this discussion the benefits of providing safe abortion services are evident. Moreover, it is also important to acknowledge that accidents happen. Birth control pills are 99% effective if taken correctly and in real life condoms are around 85% effective. This leaves a clear margin for error, which should not have such severe consequences for women. 

 

The Constitution of the United States

 

The argument presented by Justice Samuel regarding the Constitution of the United States once again highlights the significantly outdated provisions. Although this idea will not be explored in depth here, it can be acknowledged that progress needs to be made to modernise the American Constitution. Aside from abortion rights, the Second Amendment to the Constitution provides for the right to keep and bear arms. A longstanding debate, this provision has prevented stricter gun laws from being enacted in the US and as a result, citizens are still faced with an extortionate amount of shootings every year. In 2021 alone, there were 249 school shootings in total. The refusal to update gun laws is a discussion for another day, yet this merely highlights that reference to the Constitution in this case is clearly harmful to citizens and it is likely that the move to restriction abortions will lead to a similar impact of harm.

 

Human Rights Implications

 

The decision to overturn Roe v Wade in the United States poses significant human rights implications, many of which can be found in the Universal Declaration of Human Rights (UDHR). Firstly, it can be argued that this decision breaches Article 2 of the UDHR, which provides that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as…sex…”. It seems that the decision of the Supreme Court disproportionately limits the rights and freedoms of women compared to men, presenting a clear breach of Article 2. Moreover, Article 3 acknowledges that “Everyone has the right to life, liberty and the security of person”. The fact that modern abortion procedures are actually safer than a pregnancy indicates that a woman’s right to life is being restricted by the Supreme Court. In addition to the expressed provisions in the UDHR, all individual citizens should have the right to be protected by the State against harm. The move by the Supreme Court undoubtedly does not uphold the protection of women against mental or physical harm,

From this discussion, it is clear that the Supreme Court of the United State’s decision to overrule Roe v Wade is outdated, unjustified and very clearly a breach of women’s and human rights. Historically, women have always been disproportionately underrepresented in the law and politics, going from a point of not being recognised as legal persons in their own right to gaining the vote, and now it seems, in a significant move backwards, that womens rights are once again being restricted. The argument that abortion rights are not supported by the constitution does not justify the move against abortion and it is crucial that this is discussed and debated at high volumes to work to prevent such restrictions from taking place.

Print Friendly, PDF & Email

Leave a Reply

Your email address will not be published. Required fields are marked *