Abortion Laws: Unconstitutional Or Necessary?

The topic of whether anti-abortion laws are unconstitutional is a highly contested issue in the United States, with a long history of legal and political battles. The U.S. Supreme Court's decision in Roe v. Wade in 1973 established the constitutional right to abortion before fetal viability, but this was overturned in 2022, eliminating the federal constitutional right to abortion. This has resulted in a wave of state-level abortion bans and restrictions, with 14 states making abortion illegal as of June 2022. The debate centres around the interpretation of the Constitution, with those in favour of abortion rights arguing for a woman's right to make personal medical decisions about her body, while anti-abortion advocates push for restrictions based on religious and moral grounds. The political landscape has been significantly influenced by this issue, with the Republican Party largely embracing an anti-abortion stance, and Democrats, though more divided, generally supporting abortion rights.

The Supreme Court's overturning of Roe v. Wade

On June 24, 2022, the Supreme Court of the United States officially overturned Roe v. Wade, a five-decade-old decision that had guaranteed a woman's constitutional right to obtain an abortion. The ruling, which came in the Dobbs v. Jackson Women's Health Organization case, ended the federal constitutional right to abortion in the United States.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization was the culmination of years of efforts by anti-abortion rights politicians to appoint judges and justices hostile to abortion rights. The Court's ruling in Dobbs v. Jackson Women's Health Organization was based on the argument that the Constitution does not explicitly guarantee a right to privacy or personal autonomy, and that abortion is not a legitimate unenumerated right as it is not "deeply rooted in the Nation's history and tradition".

The impact of the Supreme Court's decision to overturn Roe v. Wade has been significant. As a result, abortion rights have been rolled back in nearly half of the states, with more restrictions expected to follow. The decision has also sparked concerns about the implications for other rights not explicitly enumerated in the Constitution, such as the right to contraception and same-sex marriage.

The overturning of Roe v. Wade has also had a significant impact on access to abortion. As of October 2024, 14 states have made abortion illegal, and one in three women live in states where abortion is not accessible. The abortion bans have disproportionately affected communities of colour, where systemic racism has long blocked access to healthcare and opportunities.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has also sparked a wave of new state laws and policies regarding abortion. Some states have passed laws that drastically limit the availability of abortion, while others have moved to expand or cement abortion rights, including through constitutional amendments. The decision has also led to legal uncertainty, with courts having to deal with how to apply the specific language of the ruling to individual state laws.

The overturning of Roe v. Wade has had far-reaching consequences for reproductive rights in the United States, and the fight over abortion access is expected to continue in the courts, state legislatures, and in the upcoming elections.

The Hyde Amendment

The amendment was initially attached to the annual Congressional appropriations bill for the Department of Health and Human Services (HHS). However, it has since been incorporated into other federal programs, including the Indian Health Service, Medicare, the Children's Health Insurance Program, the military's TRICARE program, federal prisons, the Peace Corps, and the Federal Employees Health Benefits Program. The Affordable Care Act (ACA) also includes a provision that applies Hyde restrictions to Marketplace plans, ensuring that federal funds are only used for pregnancies that meet specific exceptions.

The impact of the Hyde Amendment is particularly significant for women on Medicaid, a significant source of health coverage for women with higher rates of abortion, including those with low incomes and women of colour. Without Medicaid coverage for abortion, women must pay out of pocket or rely on abortion funds, facing financial challenges, especially in the second trimester.

The amendment has been a subject of debate, with advocates for abortion rights working to repeal it and those opposing abortion seeking to make it a permanent law. The removal of the Hyde Amendment from the appropriations bill would not automatically grant abortion coverage to all women, as Hyde-like provisions exist in other federally funded health benefits.

State-level abortion bans and restrictions

The US Supreme Court's overturning of Roe v. Wade in June 2022 has given states the power to restrict or prohibit abortion entirely. As a result, state-level abortion bans and restrictions have been enacted or enforced across the country. As of October 2024, 41 states have abortion bans in effect with only limited exceptions, and 14 states have made abortion illegal.

In addition to these bans, there are also various types of abortion restrictions in place at the state level. Targeted Regulation of Abortion Providers (TRAP) laws impose burdensome legal requirements on physicians who provide abortion care. Parental involvement laws require providers to notify or obtain consent from parents or legal guardians of minors seeking abortions. Some states require pregnant people to receive counselling or an ultrasound before receiving abortion care, which serves no medical purpose but instead aims to dissuade them from exercising bodily autonomy.

The impact on marginalised communities

Anti-abortion laws disproportionately impact marginalised communities, including people of colour, LGBTQ+ people, immigrants, and people with disabilities.

Healthcare barriers

People of colour and LGBTQ+ people are more likely to experience economic hardship, and therefore face barriers to accessing abortion services. For example, queer and trans people of colour with lower incomes have less access to abortion services. In addition, people of colour are more likely to be uninsured or underinsured, and are more likely to experience racism in healthcare.

Criminalisation

The criminalisation of abortion disproportionately impacts marginalised communities. In a study reviewing cases of pregnant women whose arrest or detainment was related to their pregnancy outcome, 59% were Black, Latina, Indigenous, or Asian, and 71% were represented by public criminal defence.

Surveillance

Marginalised communities are also more likely to be policed and surveilled, and therefore face greater risks to their privacy. For example, Black women are more likely to suffer miscarriages, which are generally indistinguishable from medically induced abortions, and so face higher rates of privacy infringement.

Reproductive coercion

Marginalised communities are also more likely to experience reproductive coercion. For example, Indigenous Americans experience worse healthcare outcomes than other populations in the US, and already had difficulty accessing abortion long before Roe v. Wade was overturned. Similarly, Black Americans have always faced high barriers to accessing healthcare.

The role of the Republican Party

Reagan's success in the South gave his backers significant influence in the party, and at the 1976 convention, they formulated a range of right-wing policy positions, including opposition to legal abortion, which was incorporated into the GOP platform. Although Reagan lost the 1976 nomination, his success with southern conservatives brought social and cultural conservatism to the forefront of the Republican agenda. This shift was further solidified by the emergence of the Christian Right as an influential voting bloc within the party.

The Christian Right, a largely southern phenomenon, became the driving force behind the Republican Party's anti-abortion stance, supplanting the previous leadership of Catholic groups. Reagan, seeking their support for his 1980 presidential bid, allied himself with their cause without explicitly endorsing their anti-abortion demands. During his presidency, Reagan showed little interest in abortion, focusing instead on economic priorities. However, he played a crucial role in reshaping the federal judiciary, appointing younger, more conservative judges, including Justice Antonin Scalia, who became a powerful ally for opponents of abortion.

The divide between Reaganite fiscal conservatives and southern cultural conservatives deepened from the 1990s onwards, and as southern conservatives became the dominant force within the party, anti-abortion forces gained prominence. By 2024, zealous opposition to abortion rights had become a defining characteristic of the modern Republican Party, with state legislators thwarting attempts to repeal near-total abortion bans.

The evolution of the Republican Party's stance on abortion illustrates how a political party can undergo significant ideological shifts, influenced by regional and voting bloc dynamics, ultimately reshaping the national political agenda.

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