The likely end of Roe v Wade
The article has been authored by Kanav Narayan Sahgal, Vidhi Centre for Legal Policy.
In March 2018, the overwhelmingly Republican state legislature of Mississippi passed the Gestational Age Act. Also called House Bill (HB) 1510, it was, at that time, one of the most restrictive&nbsp;abortion laws in the United States. Signed into law by Republican Governor Phil Bryant, the Act banned abortions after 15 weeks of pregnancy with exceptions to protect the life of the mother and in cases of foetal abnormality only (however, the law made no exceptions for rape or incest). Citing the state’s “legitimate interest” in protecting and preserving potential life, the law went on to describe how recent developments in science had made it possible to determine fetal heartbeat and pain as early as within five to six weeks of pregnancy; and that by 15 weeks, most abortions involved dilation and evacuation procedures- which the state of Mississippi deemed “barbaric”- hence, 15 weeks was set as the cut off point for abortions.
HB 1510 was swiftly challenged by Jackson Women’s Health Organization, the sole abortion provider in Mississippi, and received&nbsp;a permanent injunction order by Judge Carlton W. Reeves of the Jackson Federal District Court. In his judgment, Judge Reeves unequivocally condemned Mississippi lawmakers’ intent to intentionally try to overturn Roe v Wade ("The State chose to pass a law it knew was unconstitutional to endorse a decades long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade”). This legislation was, in fact, enacted with the intention of “baiting” pro-abortion activists to challenge it in the courts, thereby giving judges the opportunity to question the constitutionality of Roe. The Alliance Defending Freedom- a conservative anti-abortion, anti-gay marriage advocacy group- admitted to supporting 15-week abortion bans across states in the US because they knew that such bans would engender opposition from pro-abortion activists who would take these bans to court and accordingly allow Republican-appointed federal judges at the appeals court and Supreme Court level to consider reversing Roe. This plan has worked (so far), because even though the Fifth Circuit Court of Appeals upheld&nbsp;the Federal District Court's decision of prohibiting the Mississippi government from enforcing HB 1510 on grounds of unconstitutionality, the case has now reached the Supreme Court in Dobbs v. Jackson Women’s Health Organization; and the question&nbsp;before the court is whether all pre-viability prohibitions on elective abortions are unconstitutional.
On January 22, 1973, the US Supreme Court handed down a landmark judgment in Roe v Wade which invalidated the then-existing Texas criminal abortion laws that proscribed the procurement or attempt of abortions, except those sought on medical advice for the purpose of saving the pregnant woman’s life. In a 7-2 decision, the court affirmed a woman’s constitutional right to terminate her pregnancy prior to viability without the interference of the state. This right was squarely located in the right to personal privacy- a right not explicitly mentioned anywhere in the US Constitution (as the judgment itself acknowledged), but one which was further located in the Fourteenth Amendment, the Ninth Amendment, and in case law dating back to 1891. So, while the court upheld women’s ability to make abortion decisions, it also recognised the state’s interest in protecting and preserving “potential life”. And to balance these two competing interests, it devised a trimester framework that limited the state’s ability to restrict abortions prior to viability (at approximately 24 weeks of pregnancy). Thus, abortions in the first trimester could be permitted with the joint approval of a physician and the pregnant woman only. Abortions in the second trimester could be regulated by the state only if the procedure aided in preserving maternal health. The third trimester was when the viability line was crossed, and at this point, states were given more freedom to regulate abortions only to protect the life or health of the mother. Over the years, Roe has garnered fierce criticism from political pundits and scholars alike. In an impassioned defence of the pro-life cause, American philosopher Francis J. Beckwith argued that the Roe Court’s overall judgment was flawed and hence, merited summary rejection. Some of the grounds of rejection included, but were not limited to, the Court’s purported inaccurate historical reading of abortion practice in the country, its assessment of the word “person” as it appeared in the US constitution, and its final verdict which included in the trimester framework that sought to balance pregnant women’s personal liberties and privacy interests with the state’s interest in protecting prenatal life. Two subsequent Supreme Court decisions further shaped the state of abortion politics in America and concomitantly held Roe to further judicial scrutiny. In Akron v. Akron Center For Reproductive Health, the Supreme Court unequivocally reaffirmed&nbsp;Roe, but saw one justice (Justice Sandra Day O’Connor) deliver a powerful and prophetic dissent, stating that Roe's trimester system could never be "supported as a legitimate or useful framework for accommodating a woman's right and the State's interests”. She said this primarily because the Akron Court had concluded that state interests in preserving life had to change with advances in medical technologies. Thus, second-trimester abortions that were unsafe at the time of Roe were much safer 10 years later at the time of Akron. And just as these advancements would move forward the point at which abortions become safe for women, other scientific advancements could move backward the point of fetal viability- leaving the trimester framework not just unworkable, but also the very reason for the erosion of abortion rights altogether. And in 1992, the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey ruled<i>&nbsp;</i>that the trimester system was indeed unworkable and hence, replaced it with the undue burden framework in its judgment. Undue burden was described as any "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability". By applying this principle, the Court upheld almost all of Pennsylvania’s abortion regulation laws, yet reaffirmed the central holding of Roe using the principle of stare decisis (or respect for precedent). Now, in 2022, it is this central holding of Roe and Casey that has come under scrutiny in Dobbs.
Oral arguments&nbsp;in Dobbs were held on 1st December 2021, with the Supreme Court expected to deliver a verdict sometime in June or July 2022. These arguments were significant because they went at the heart of Roe and Casey’s essential holdings and questioned the applicability of stare decisis. Advocate Julie Rikelman, representing Jackson Women's Health Organization and others, presented three arguments against HB 1510. First, she argued, that the Casey Court had already debated the merits and demerits of Roe extensively, and based on those arguments decided to uphold Roe. Thus, to roll back on precedent would be a grave violation of stare decisis. Second, she argued, that forcing a woman to carry a pre-viability pregnancy to term would be a deprivation of her liberty, as already held by Roe and Casey. And third, that Roe and Casey had engendered significantly strong reliance interests among women seeking abortions- particularly poor women- over the years. Thus, Roe and Casey should not be overturned.
On the other hand, advocate Scott G Stewart, arguing on behalf of the Government of Mississippi, stated that Roe and Casey had outlived their times. 30 years since Casey, medical advancements in science warranted the Court to re-examine the point of viability- a line that Stewart asserted had no textual or historical basis in the US Constitution. In addition to calling to question the applicability of stare decisis in Dobbs, he went on to argue that, unlike other landmark Supreme cases that dealt with questions of family and procreation (such as Griswold v. Connecticut on contraceptive use, Lawrence v. Texas on private same-sex conduct, and Obergefell v. Hodges on same-sex marriage), this case was different because it concerned with the termination of the life of an unborn child. Thus, even though the Fourteenth Amendment was invoked in each of those cases, as well as in Roe and Casey, none of the rights enumerated in any of those cases were ever textually mentioned in the Constitution and none of them (except Roe and Casey) dealt with the unborn. Moreover, even though each of those judgments set clear-cut rules about family and procreation, Roe and Casey didn’t- instead, they created more confusion about what constituted viability and left it to state legislatures to determine the precise point at which their interest in preserving prenatal life began. For these reasons advocate Steward urged the court to reexamine the stare decisis principle already applied Casey- and reject it.
Francis J. Beckwith points out in his book, Defending Life: A Moral and Legal Case against Abortion Choice that Supreme Court appointments are historically political and hold important ramifications for both pro and anti- abortion activists. Over the past four decades, pro-life Republican presidents, namely Ronald Reagan (1981-89), George H.W Bush (1989-93), George W. Bush (2001-09), and Donald Trump (2017-21) have appointed a total of ten Supreme Court Justices over the years. However, not all appointees shared the same judicial views on abortion as those that nominated them- although they came quite close. For instance, even though O’Connor dissented in Akron, she joined Anthony Kennedy and David Souter in delivering the Court’s verdict in Casey which reaffirmed Roe. Similarly, in another significant abortion case&nbsp;(Webster v. Reproductive Health Services), the Court upheld Roe, while also upholding Missouri’s strict abortion restrictions- this time too, Justice O’Conner, upheld Mississippi’s restrictions in her concurring judgment, while also upholding Roe- a move that caused her colleague, Justice Scalia, to criticise her in his concurring judgment. That being said, it is quite likely that the current Roberts’ Court is well poised to overturn Roe. For starters, the current composition of the Supreme Court has a conservative supermajority, with Justices Thomas, Alito, Roberts and Gorsuch having previously handed down pro-life aligned rulings on prominent abortion cases ( see: <i>Gonzales v. Carhart</i> and <i>Stenberg v. Carhart</i>). Meanwhile, the newer Trump-appointed Justices- Barrett, Gorsuch, and Kavanaugh- have not yet ruled directly on significant abortion cases, yet remained conservative by refusing&nbsp;to block the now infamous Texas Heartbeat Act which banned most abortions after just 6 weeks of pregnancy (in a clear violation of Roe and Casey).
Over the years, the Supreme Court has, bit by bit, chipped at Roe. What started off as an expansive judgment that enumerated a woman’s right to terminate her pregnancy up until the third trimester, has today been reduced to a mere skeleton of what it once was. Although judgments like Akron, Webster, and Casey reaffirmed Roe, they also radically transformed its key components by allowing states to increasingly bureaucratize abortion and even allow different states to constitutionally adopt different theories of life, including those that held that life began at conception.
Although political and social divisions continue to fragment&nbsp;public discourse on abortion rights in America, all eyes are on the Supreme Court for what promises to be a historic ruling in Dobbs.
(The article has been authored by Kanav Narayan Sahgal, Vidhi Centre for Legal Policy.)