The Breakdown is a Tempest exclusive series that attempts to tackle issues, concepts, terms, and histories that are relevant and intrinsic to conversations about social justice. This is our version of a 101 on Social Justice, with a grassroot level approach that hopes to simplify and make political and cultural conversations accessible in a global level.
From the time abortion was legalized in the US, a woman’s right to an abortion has been stigmatized and politicized, becoming a divisive political battleground between Pro-Life and Pro-Choice. Now, in the wake of Ruth Bader Ginsburg‘s passing and the weight of the elections looming ahead, Roe vs Wade, the landmark decision that shaped abortion rights in the US is on thin ice.
Roe vs Wade was issued in 1973 by the US Supreme Court and legalized abortion across the United States. The decision involved the case of Norma McCorvey, referred to in her lawsuit under the pseudonym “Jane Roe”, who became pregnant in 1969 and wanted an abortion, which was illegal in the state of Texas. The lawsuit was filed in the US federal court against her local district attorney, Henry Wade. The US District Court (for Northern Texas) ruled in her favor, but the state of Texas appealed this ruling to the Supreme Court. The Supreme Court decided to strike down the Texas law banning abortions, which essentially legalized abortion across the country.
Two important decisions came out of Roe vs Wade that still holds to this day. The US Constitution provides a fundamental right to privacy under the 14th Amendment that protects a woman’s right to choose whether to have an abortion or not. However, the right to an abortion is not complete and should be balanced against the government’s interest in protecting prenatal life and a woman’s health.
Therefore, under Roe vs Wade, a framework was created to balance both government interests and a woman’s right to privacy. The court defined the rights of a woman into three trimesters. However, since the decision, a number of opponents have pushed for stricter abortion laws, and many regulations placing restrictions on abortions have successfully been passed in several states.
The reason as to why Roe vs Wade is at risk of being overturned is a lot more complicated than it appears to be; it stems down to multiple reasons but ultimately leads back to the Supreme Court. Roe vs Wade has always been controversial with multiple presidents looking to challenge it. President Gerald Ford, George W. Bush, and George H.W. Bush were amongst those who opposed Roe. President Reagan who was in office between 1981-89 used his administration to attempt to reverse the abortion ruling and made it a top priority of his Justice Department.
During the 2016 election campaign, Trump pledged that he would appoint Justices to the Supreme Court who would look to overturn Roe. The US Supreme Court consists of nine members who serve lifetime appointments; the court is typically split evenly between right and left-leaning individuals with one swing vote. However, since being elected, President Trump has already appointed two right-leaning Justices to the Supreme Court (Neil Gorsuch in 2017 and Brett Kavanaugh in 2018), and the recent passing away of Justice Ruth Bader Ginsburg creates more worry for abortion rights as a seat on the Supreme Court has opened up.
Unsurprisingly, Trump has nominated socially conservative Jurist Amy Coney Barret, and if approved by the Senate would then result in an extremely conservative Supreme Court (6:3). Given that the Senate holds a majority of Republicans, it appears to be very likely that Barret’s nomination may lead to her joining the Supreme Court. The Supreme Court shapes public policy in the US, and its current conservative nature creates worry for abortion rights and Roe vs Wade. As we speak, opponents are attempting to, or have succeeded in passing regulations that ban abortions based on fetal age and type of procedure. Currently, these issues are being contested within the lower courts of the US but could easily make its way up to the Supreme Court which could have a full reversal on abortion rights in the US.
So what happens if Roe vs Wade is overturned? The answer is quite simple. Roe vs Wade established a framework for abortion regulations at a federal level, so if overturned by the Supreme Court abortion rights would revert to the decision of the States. This would mean that abortion rights will only be protected in less than half of the states, and it will become illegal in about twelve. In another ten states, their trigger laws state that the legislature is allowed to meet and decide upon the legality of abortion but given the conservative nature of these state legislatures, the likelihood of abortion being made illegal is relatively high. Overturning the decision would also mean that more than one-third of all American women of reproductive age would lose their access to abortion. Laws relating to abortion would vary widely across the country which would further increase the discrepancy in reproductive rights between individuals in the US.
If you’re interested in learning more, here are some sources that further explore Roe vs Wade
Reversing Roe – available on Netflix
AKA Jane Roe – FX Documentary
Is this the end of Roe vs Wade – VICE News Discussion
Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade – Essay by Ruth Bader Ginsburg
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