New Delhi: The US Supreme Court is set to overturn the Roe v Wade decision, a landmark ruling given in 1973, that legalised abortion across the country, according to a draft opinion of the top court leaked by media publication Politico.
The document, which was leaked Monday, reads: “We hold that Roe and Casey must be overruled…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Casey refers to a 1992 decision – Planned Parenthood v Casey – which largely upheld the women’s abortion rights guaranteed under the Roe v Wade decision.
If the opinion is adopted, it would be the most significant ruling on abortion in nearly five decades and tremendously impact the landscape of women’s reproductive health by limiting access to abortion in the US.
The 98-page draft opinion comes ahead of the pending decision in the Dobbs v Jackson Women’s Health Organization case which deals with the constitutionality of a 2018 Mississippi state law that banned abortions after the first 15 weeks of pregnancy.
A decision from the Supreme Court on the case is expected in June or early July.
The leaked draft opinion, which is not legally binding, has drawn criticism from many supporters of the Roe v Wade decision.
Historians such as University of Chicago assistant professor, Kathleen Belew, have pointed out that abortion rates have been found to be about the same rate per capita over time whether legal or banned but what changes when you make it illegal, is how many women seeking abortion can die from it.
The current nine-judge bench of the US Supreme Court consists of a conservative majority – 6 is to 3. Fearing that an overruling is imminent, Democrat lawmakers such as Bernie Sanders have suggested the US Congress pass legislation that codifies Roe v. Wade as “the law of the land”.
Also read: Texas abortion law shows when human life begins is a question of politics – not biology
What is Roe v Wade?
About fifty years ago, the US Supreme Court passed a landmark ruling that protected women’s abortion rights in the infamous Roe v Wade case.
Plaintiff Jane Roe, later identified as Norma McCorvey, was an unmarried pregnant woman who had filed a case challenging Texas abortion laws in 1970. District Attorney Henry Wade, who represented the State of Texas, was the defendant in the case.
Roe’s lawyers said she was unable to travel out of the state to obtain an abortion and argued that the law was too vague and infringed on her constitutional rights.
At the time, abortion was illegal in Texas unless it was done to save the mother’s life. Roe alleged that the Texas state laws were unconstitutionally vague and infringed upon her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
In January 1973, the Supreme Court ruled that the US Constitution provides a fundamental “right to privacy” that protects a woman’s right to choose whether to have an abortion. However, it also ruled that the abortion right is not absolute and must be balanced against the government’s interests in protecting women’s health.
One major takeaway, was that the top court recognised that abortion falls under a woman’s right to privacy.
A subsequent decision in 1992 – Planned Parenthood v Casey – largely maintained this right.
In this case, Planned Parenthood, a health centre, challenged new provisions introduced by the Pennsylvania legislature to amend its abortion laws in 1988 and 1989. Some provisions included requiring consent of one parent in the case of a minor seeking an abortion and married woman had to indicate that her husband was informed of her intention to get an abortion. Casey refers to Robert P. Casey who was the governor of Pennsylvania at the time.
In April 1992, in a “bitter” 5-4 decision, the Supreme Court upheld the Roe v Wade decision, but did not strike down all of the Pennsylvania legislature’s provisions.
Criticisms against Roe v Wade decision
The Supreme Court’s decision to affirm Roe in 1973 has drawn several criticism. Foremost, there are some who believe the Supreme Court exercised “judicial activism” – meaning judges go beyond jurisprudence, and base their decision on personal views.
Fierce feminists, such as late Supreme Court Justice Ruth Bader Ginsburg, have also felt that the 1973 decision was inadequate. In a lecture at New York University in 1992, Ginsburg had said: “The Roe decision might have been less of a storm center had it both homed in more precisely on the women’s equality dimension of the issue…”
In short, she felt a woman’s right to seek an abortion would have been better grounded in the tenet of gender equality instead of the right to privacy.
In a report by The New York Times in September 2020, published shortly after Ginsberg’s death, mentions that during the time that Roe v Wade was being decided by the Supreme Court in the 1970s, Ginsberg – who was at the time a lawyer– was also working on a case that pertained to abortion rights too.
In the ’70s, Ginsburg was representing Captain Susan Struck, an Air Force nurse stationed in Vietnam, who had become pregnant. At the time, though abortion was prohibited in most of the US, it was allowed on military bases. The military however, had given Struck a choice to either have an abortion or leave the Air Force.
When the Supreme Court agreed to hear the case, the Air Force changed its policy and let Captain Struck have her child as well as keep her job.
“Ginsburg, though, believed the Struck case would have provided a stronger foundation for a woman’s right to choose, and tried to see if Capt. Struck could find other instances of discrimination to keep the case alive,” the NYT report said, quoting Mary Hartnett, a law professor at Georgetown University who will co-wrote a biography of Justice Ginsburg.
Also read: Why challenge to 1 US state’s law has cast shadow on 50-yr-old order on women’s abortion rights