SCOTUS seems ready to overturn Roe v. Wade

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Photo by Elizabeth Frantz / AP
Photo by Elizabeth Frantz / AP

On Monday, May 2, a draft Supreme Court decision was leaked to the press, indicating that the conservative-dominated court intends to overturn the nearly fifty-year-old decision in Roe v. Wade. In days that followed, concerned citizens took to the streets to protest, speak out about the importance of accessible and safe abortions, and advocate for state and federal legislation to protect abortion access.

The history behind Roe
Before the 19th century, no legislation existed preventing abortion in the United States. The practice was quite common among housewives, who typically performed the procedure before "quickening," that is, the feeling of movement from the fetus inside the uterus, typically around the fourth month of pregnancy.

The first calls to eliminate abortion came from the American Medical Association after the organization was founded in the 1850s. Advocates for anti-abortion laws were motivated not by "the sanctity of life" but by a desire to push doctors' competitors (midwives and homeopathic healers) out of business.

Others who supported new laws against abortion did so in hopes that they would help keep white Protestants in the majority of the American demographic. At the end of the 19th century, America saw a sharp increase in immigration, especially Irish Catholics. The Catholic Church's long-standing policy against abortion led many such immigrant families to be rather large. Staunch opposition to immigration formed among Americans, who (ironically) referred to themselves as "nativists." These Americans feared immigrants would cause a religious and racial demographic shift and noted that white Protestant women were the demographic most often having abortions.

In the 1870s, the Comstock Law was passed to crack down on premarital sex. This law made it illegal for anyone to distribute contraception, information on reproduction, or abortion-inducing drugs through the US mail. Abortion was, however, still legal for married couples, so long as the husband gave his approval.

In the next decade, states cracked down further, with nearly all of them passing some form of abortion ban. However, these bans were loosely enforced until the 1930s.

The tide turns
The tide started to turn once again in the 1960s. With new social movements forming around civil rights and women's empowerment, younger generations began to question some of the laws on the books. In 1965 the Supreme Court ruled in favor of Planned Parenthood in the landmark court case Griswold v. Connecticut, striking down that state's laws against the sale of contraceptives to married couples. The court cited the Fourteenth Amendment's right to privacy in its ruling.

Before 1973, a few American states did allow access to abortion, including Washington. However, in the majority of the country, the procedure was still illegal. This did not mean abortions were not happening. According to the Guttmacher Institute, an average of 1.2 million abortions occurred illegally every year in the 1950s and '60s.

The landmark case of Roe v. Wade began in 1970, when an unnamed woman referred to as "Jane Roe" by the court, filed a lawsuit against Henry Wade, the district attorney of Dallas, Texas, claiming that the state's anti-abortion laws were too vague and violated her constitutional right to privacy as previously protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

A Texas district court ruled in Roe's favor, stating that the state's abortion ban violated the constitutional right to privacy. Wade appealed the case, stating that he would continue to prosecute doctors who performed abortions despite the ruling.

In 1972 the Supreme Court, which then consisted of all men, took up the case. Justice Blackmun wrote the landmark 7-2 decision, which came down on January 22, 1973, stating that "a state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment."

The decision initially divided up a pregnancy into three trimesters. In the first trimester, a woman would be free to choose to terminate the pregnancy for whatever reason and would not have to justify this decision under the privacy protections of the Constitution. In the second trimester, states could regulate abortion access but not outright ban the procedure. In the third trimester, a state could ban abortion, as the fetus would likely to be able to survive on its own outside the womb at this point. However, in cases where the safety of the mother was at risk, an abortion would still be accessible.

The ruling proved to be highly controversial and was challenged in 1992 in the case of Planned Parenthood v. Casey. The Supreme Court upheld its ruling in Roe but imposed a new standard to determine whether state regulations on abortion were undermining the Constitution: whether the law placed an "undue burden" on abortions of nonviable fetuses. The ruling upheld Pennsylvania's strict regulations but did strike down its requirement for a husband to sign off on an abortion in the second trimester.

The ruling has endured numerous attempts to challenge and overturn it, but has always remained an important reminder of the right to privacy and bodily autonomy. Until now.

Dobs v. Jackson
In the leaked decision, Justice Alito asserts that the court must overturn Roe, contradicting stare decisis, the doctrine that courts will adhere to precedent in making their decisions. Alito acknowledges recent restrictive laws passed in states such as Texas and Mississippi: "26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions," Alito wrote.

"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, including the one which the defenders of Roe and Casey now chiefly rely upon — the Due Process Clause of the Fourteenth Amendment," he continued.

Alito's statements cannot be read as nonfactual or incorrect, as the US Constitution does not mention abortion. However, the original document did not need to address the issue, as it did not mention women at all.

"Indeed, when the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy," Alito continued, giving more historical context to his decision.

Again, this context is correct. At the time of the passage of the Fourteenth Amendment in 1868, the all-white, property-owning, male voters of the United States had voted to criminalize abortion in a majority of states.

"That provision," Alito wrote of the Fourteenth Amendment, "has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in the Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"

Among rights emanating from the Fourteenth Amendment but not mentioned in the Constitution or "deeply rooted in the Nation's history and tradition" include the right of LGBTQ+ people to marry (Obergfell v. Hodges), the right for children of different races to be educated in the same facilities (Brown v. Board of Education), and the right of interracial couples to marry (Loving v. Virginia).

Alito continued his argument by bringing in global comparisons to the United States. "At the time of enactment, only six countries besides the United States permitted non-therapeutic or elective abortion-on-demand after the twentieth week of gestation," he wrote.

Again, this information is accurate, although a bit misleading. While only six other countries besides the United States had legalized abortion at the time the Roe decision was issued, now 72 countries provide legal "abortion-on-demand."

The comparison to other countries has left some wondering what other ways the United States stacks globally up when it comes to family planning laws. The United States has the highest maternal mortality rate of all Global North countries (rich and powerful regions); it is also the only country in the world that has seen an increase in maternal mortality since the 1980s, according to the Global Women's Atlas. According to Equitable Growth, the United States spends less than any other Global North country on family planning and childcare. Data from Statista also found that the US is the most expensive country for childbirth.

Alito concludes his 98-page decision by writing, "We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what would happen, we would have no authority to let that knowledge influence our decision."

What happens next?
Despite Alito's statement that we do not know how society will respond to the repeal of Roe, abortion activists, sociologists, and political scientists have been predicting what this would mean for years.

According to the Guttmacher Institute, 20 states, including Idaho, are certain to ban abortion altogether. Another five are highly likely to follow suit. The institute found that BIPOC, disabled, young, and LGBTQ+ people are the most likely to be affected by a loss of abortion access. The statistics also show that one in four AFAB (assigned female at birth) people will have an abortion by age 45.

Moreover, when rights disappear, statistics show abortions don't. The World Health Organization found that 13% of childbirth-related deaths can be attributed to unsafe "back-alley" abortions and that in Global North countries like the United States, 30 people die for every 100,000 unregulated abortions.

For those who choose not to have an abortion once their rights are revoked, there are other routes to take, such as giving the child up. According to iFoster, the current demand for foster parents is higher than the supply; 424,000 children are currently in the system, and one in five of them will suffer physical abuse. Twenty thousand children are expected to age out of foster care annually, and within four years of doing so, half will have no earnings and risk homelessness.

Not final
Of course, Alito's leaked decision is not final, and no ruling has yet to be made on Dobbs v. Jackson. Perhaps the justices will uphold Roe, just as they said they would in their Senate confirmation hearings.

In 2006, Justice Alito said, "Roe v. Wade is an important precedent of the Supreme Court." His conservative colleagues all echoed this sentiment, with Gorsuch adding in 2017, "That's the law of the land. I accept the law of the land." Kavanaugh also agreed that "it's settled as a precedent of the Supreme Court" in 2018.

Even if Roe v. Wade is overturned by justices who have already stated it is precedent, there is still a possibility that the federal government could pass a law protecting abortion rights.

Whatever happens in the coming weeks, one thing is certain: Americans are being stirred to action, and abortion rights will not go away without a fight.