On the 24th of June 2022 in a landmark decision that shook the USA, the supreme court ruled that abortion is not a right protected by the United States constitution. This ruling placed on individual states the authority to determine the legality of abortion in their respective states. This ruling also overturned two previous rulings; Roe vs Wade and Planned Parenthood vs Casey which had prevented states from banning abortion before the age of viability. This decision was a controversial one and led to protests and counter-protests across America sparking furious debates regarding the implications of such a ruling.

What really happened?

In the case named Dobbs vs Jackson Women’s Health Organization, the supreme court ruled that abortion was not a constitutional right. This was in response to the Mississippi Gestational Age Act passed in 2018 which banned any abortion procedure after the first 15 weeks of pregnancy with exceptions only made for pregnancies that constituted a threat to the life of the mother and pregnancies in which the fetus had severe abnormalities. This law was challenged by the Jackson Women’s Health Organization which sued state officials to challenge the constitutionality of the act. The U.S District Court for the Southern District of Mississippi heard the case and placed an injunction on the Act preventing the state from enforcing it. Mississippi then appealed the case to the Fifth Circuit, but the ruling was upheld. Mississippi finally brought the case to the supreme court which reversed the lower courts’ rulings and overturned Roe vs Wade and Planned Parenthood vs Casey. The supreme court overturned Roe and Casey on the basis that “abortion was not deeply rooted in their nation’s history” and as such was not a constitutional right, associate justice Samuel Alito was noted to refer to Roe as being “egregiously wrong”.

Reaction to the ruling

The ruling was praised by Republicans, conservatives, Catholics, anti-abortion agencies, and pro-life supporters. It was condemned by abortion rights activists, democrats, liberals, progressives and protestants. Polls carried out by various news organizations noted that the majority of Americans opposed the ruling. Some are however of the opinion that the ruling was needed and justified and are happy that the authority to decide the legality of abortion is being returned back to individual states as is contained in the 10th amendment which stipulates that matters not addressed by the constitution should be decided by the states. Some support or oppose the decision because they see the ruling as either a victory or loss for their respective ideologies, parties or sects and not due to any personal investment in the issue.

The controversies regarding Roe vs Wade

The decision by the U.S supreme court in 1973 to make abortion a right granted and protected by the constitution has been one of the most controversial decisions in U.S judicial history. This decision which was seen as a victory for abortion rights activists, feminists and population control activists was seen as a loss, injustice, and judicial overreach by conservatives and certain religious communities. Proponents of abortion saw it as a win for women’s rights and the right to privacy, they opined that this decision will lead to innumerable benefits such as less welfare, slower population growth, and an increase in the quality of life. Those opposed to abortion saw this decision as undemocratic and an infringement on the rights of conservatives as they claimed that the constitution didn’t grant a right to abortion and accused the supreme court of legislating. 

Many law scholars on both sides of the divide have criticized the decision by the supreme court; some have accused it of not doing enough to guarantee the protection of abortion by framing the decision as a civil rights issue instead of a human rights issue. Some argue that the basis for such a decision is faulty, they say that such a basis as the one cited is legally indefensible as using the 14th amendment’s provision of a right to privacy to defend a right to abortion is a vague and shaky defense. They argue that a group opposed to abortion can orchestrate a ban on abortion using similar ways employed in the establishment of Roe. Such a group can also argue that since the 14th amendment guarantees a right to life; abortion is a violation of such a right. The decision caused Americans to be divided along party lines as Republicans were against abortion while Democrats supported it. The groups for and against abortion then came to be regarded as pro-choice and pro-life respectively. 

Following Roe vs Wade, conservative states made every effort to restrict abortion in their states; they made laws to this effect and these laws restricted abortion to various degrees. These laws were always challenged by individuals and organizations in support of abortion, most of these laws were struck down but various restrictions on abortion were still enacted such as banning of third-trimester abortions, need for parental consent, 24 hour waiting period and adequate information regarding abortions provided to women who sought an abortion. 

Abortion became a political issue as politicians campaigned on platforms that were either for or against abortion. Innovative ways were developed by conservative states to evade the federal protection on abortion by designing laws that were only enforceable by citizens such as the heartbeat act which prohibited abortion after the detection of the fetal heartbeat. With the emergence of a conservative majority in the supreme court and the entry into the supreme court of judges who held anti-abortion views, many conservatives anticipated an overturning of Roe vs Wade. Certain states created “trigger laws” in anticipation of the overturning of Roe vs Wade. These laws were set in motion so as to ban abortion in these states as soon as Roe was overruled, they were also created to act as a means of bringing before the supreme court a case concerning abortion that will facilitate the abolishment of Roe. It was one of such abortion laws that led to the overturning of Roe vs Wade.

Implication and impact of the decision

The decision by the supreme court entails that the legality of abortion will now be decided by individual states; while certain conservative states like South Dakota, Kentucky and Louisiana had trigger bans that went into effect immediately after the overturning of Roe, other states have bans that have implementation mechanisms that have already been set in motion. Many states’ legislatures are being convened to sit on the matter and make laws banning abortion in those states. While democrat-led states have vowed to make abortion truly free in their states and have set into motion means of protecting those who seek abortion in their states.

The restriction on abortion varies and differs from state to state, while some ban abortion when a heartbeat is detected, others ban it at 15 weeks and others at certain gestational ages. In general, third-semester abortion is usually prohibited and the states that have laws banning abortion usually make exceptions for emergencies threatening the mother’s health and fetuses with severe abnormalities. While some also make a general exception for rape and incest, others only entertain this exception up until a certain fixed point in a woman’s pregnancy.

Following this decision and even prior to this ruling many abortion clinics have already shut down for fear of lawsuits as certain states have steep punishments for those who perform abortions and those who are found to facilitate abortion in any way. Many may face hefty fines and substantial prison sentences for facilitating an abortion. 

While no state law exists that can prohibit citizens from leaving their states and travelling in order to obtain an abortion in permissible states, some fear that may soon be the case. Associate Justice Brett Kavanaugh has opined that any such law may be an affront and a disregard for the right to travel. It remains to be seen if conservative states may consider going through such a route and if they have the authority to enforce such a ban. Democrat-led states have prepared for an increased influx of people into their states for the purpose of abortions and some have set up legal avenues to protect institutions and people from being punished by anti-abortion states. Nevertheless, many women may not be willing or able to make the required out-of-state trips to get an abortion; this may be due to finances and issues with logistics.

While no state has restricted access to drugs that are employed in carrying out an abortion, some state officials have hinted at doing so. Some officials wish to even limit access to information regarding these drugs in their states. Some individuals have also reported difficulty accessing drugs like methotrexate which are used to treat other medical conditions; it remains to be seen if this is due to restriction, increased demand, or just a coincidence.

The battle for and against abortion is likely to be waged across each state with some states already decidedly in either the for or against camps. Abortion rights advocates and pro-choice individuals and organizations will seek to challenge anti-abortion laws passed by state legislatures and prevent them from being enforced by state officials.

Many fear that this ruling sets a precedent that threatens other similar rights like the right to contraception and the right to same-sex marriage. In fact, associate justice Clarence Thomas opined that the supreme court should overturn such previous rulings as they were “demonstrably erroneous” and not protected by the constitution. Liberals fear that this decision may be the start of a period of repression of liberalism in America; issues like homosexuality, transgender and other deviant sexual practices have been propped up and maintained due to supreme court rulings such as Griswold vs Connecticut, Obergefell vs Hodges and Lawrence vs Texas. These rulings have prevented states from acting against LGBT issues, it also empowered LGBT activists and advocates to go against those they perceive to be discriminating against LGBT persons. Many businesses and persons have been sued and mandated to respect these liberal issues. Even issues like diversity which is being used to hound institutions is a feature of this era of liberalism which has seen America become the biggest exporter of LGBT and diversity the world over. If the supreme court employs similar metrics it used to overturn Roe to examine previous rulings, it may find they also have no basis in the U.S constitution and are not rooted in U.S history and overturn such rulings thereby empowering states to decide on the legality of such issues; this is the expectation of many conservatives. 

Some are of the opinion that such divisive topics like abortion, gay marriage and a host of other LGBT issues should be left to individual states to decide their legality. They opine that for a healthy democracy and a federal system that the U.S runs, such decisions should be left in the hands of the people to decide what is appropriate in their locale through their elected legislative, instead of states being forced by a central government to accept ideologies that they are opposed to. 

While Democrats in congress are trying to codify Roe into a federal law that will supersede state law, their actions are unlikely to be fruitful as they do not have the majority to achieve it and even if they gain such a majority in the coming midterms and managed to codify Roe, the issue will still be brought back to the supreme court which will likely dismiss such a law. Bar a constitutional amendment for abortion which is improbable, the legality of abortion is likely to be determined by states for the foreseeable future.

Emeasoba Sylvester