Abortion Laws: Scrutinizing The Scrutiny Of Women's Rights

Abortion laws are subject to strict scrutiny, which is the most stringent level of judicial review in the United States. This means that courts must evaluate challenged abortion laws under the strict scrutiny standard.

Strict scrutiny requires that the government demonstrates a compelling state interest and that the law in question is narrowly drawn to express only the legitimate state interests at stake. The Supreme Court's decision in Roe v. Wade (1973) ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. In addition to the dissent, Roe was criticized by some in the legal community, including some who thought that Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism.

In 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not deeply rooted in this Nation's history or tradition, nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe.

The trimester framework

• First trimester: the woman has the exclusive right to pursue an abortion, not subject to any state intervention.
• Second trimester: the state cannot intervene unless the woman's health is at risk.
• Third trimester: the state may restrict the right to an abortion but must always include an exception to any regulation that protects the health of the mother.

The undue burden test

In 2022, the Supreme Court majority in Dobbs v Jackson Women's Health Organization held that the term "undue burden" was ambiguous and unworkable, causing courts to struggle to apply the test consistently. This eliminated the framework while overruling Casey and Roe v. Wade.

The strict scrutiny standard

In Roe v. Wade, the Supreme Court held that access to abortion is a "fundamental right" and that only a "compelling state interest" could justify the enactment of state laws or regulations that limit this right. The Court also recognised that the state has an "important and legitimate interest" in protecting the health of the mother and even "the potentiality of human life" inside her.

The Court then set out a three-tiered legal framework, based on the nine-month period of pregnancy, which gave the state greater interest and regulatory latitude in each successive tier. During the first trimester of pregnancy, the state has no real interest in limiting the procedure in order to protect a woman's health. During this period, the state can only impose basic health safeguards and cannot limit access to abortion.

In the second tier, which covers the period from the end of the first trimester to the point of fetal viability, the state has an interest in protecting maternal health and can regulate abortion only to protect the health of the mother. Regulations must be directed towards ensuring maternal health and cannot be aimed at protecting a fetus or limiting access to abortion services.

The third tier covers the period after the point of fetal viability. During this time, the state has an interest in protecting "potential life" and can even proscribe abortion, as long as the procedure is still allowed in cases where the life or health of the mother is at risk.

The right to privacy

The landmark 1973 ruling of Roe v. Wade by the U.S. Supreme Court applied the constitutional principle of privacy and liberty to a woman's ability to terminate her pregnancy. The Court held that the right to privacy includes a woman's right to decide whether to have an abortion, and that the government had no say in this decision. This ruling was based on the country's tradition of individual liberty, which places key personal and moral decisions in the hands of individuals rather than the government.

The Roe v. Wade ruling was consistent with earlier Supreme Court rulings that recognised a right of privacy that protects intimate and personal decisions, including those affecting child-rearing, marriage, procreation, and the use of contraception, from government interference. The Court's decision in Roe v. Wade was, therefore, a significant step towards advancing gender equality in educational, economic, and political spheres.

The Roe v. Wade ruling established that the right to privacy was a fundamental right, which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States. This standard required that infringements on the right be narrowly tailored to serve a compelling government interest.

The Supreme Court's decision in Roe v. Wade was, however, overturned in 2022, with the ruling in Dobbs v. Jackson Women's Health Organization, which stated that there is no federal constitutional right to abortion. This marked the first time in history that the Supreme Court had taken away a fundamental right.

The right to bodily autonomy

The concept of bodily autonomy in the context of abortion was first fully articulated by moral philosopher Judith Jarvis Thomson in 1971. Thomson's famous analogy compared a pregnant woman to an individual who, without their consent, is hooked up to a famous violinist who needs this connection to stay alive. In this scenario, it would be morally acceptable for the individual to detach themselves from the violinist, even if it results in the violinist's death. Similarly, Thomson argued that it should be acceptable for a pregnant woman to terminate her pregnancy, as she did not consent to it and is not seeking the death of the fetus as an end goal.

However, there are differing views on the right to bodily autonomy in the context of abortion. Some argue that abortion violates the bodily autonomy of the fetus, which has a right to life and should be protected by the state. This perspective asserts that abortion is wrong because it entails the intentional killing of an innocent human life. Additionally, some critics of the bodily autonomy argument claim that it fails to acknowledge the moral relationship between mother and child, which already exists by the time abortion is contemplated. They argue that parents have special obligations to their children and that abortion infringes on these obligations.

The debate around bodily autonomy and abortion is complex and multifaceted, involving ethical, legal, and social considerations. It continues to be a subject of discussion and controversy, with varying opinions across different countries and cultural contexts.

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