Abortion Laws: Roe V. Wade's Problematic Legacy

The 1973 Roe v. Wade ruling by the U.S. Supreme Court recognized that the decision to continue or end a pregnancy belongs to the individual, not the government. The ruling established a framework for legal abortions across the United States, asserting that the Constitution's guarantee of liberty in the Fourteenth Amendment protects individual privacy, including the right to abortion prior to fetal viability.

However, the Roe v. Wade ruling faced two key problems. Firstly, while it stated that people had the right to abortion, it failed to protect people's access to abortion services. Many states passed laws that made accessing abortion extremely difficult, and in 1976, the Hyde Amendment, a national policy viewed as racist, was enacted. Secondly, the ruling did not consider the impact of abortion restrictions on marginalized communities, including people of color, immigrants, people with disabilities, and LGBTQ+ folks. These issues contributed to the ongoing debate surrounding abortion laws and reproductive rights in the United States.

Roe v. Wade did not protect people's access to abortion

The Roe v. Wade decision held that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. This placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and religion, by conferring the highest degree of constitutional protection, known as "strict scrutiny".

However, the ruling also allowed states to impose some limitations on abortion access, particularly during the second and third trimesters of pregnancy. The Court's decision created a framework that balanced the state's interests with privacy rights, dividing pregnancy into three 12-week trimesters:

• During the first trimester, the Court ruled that states could not regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
• In the second trimester, states could regulate abortion if the regulations were reasonably related to the health of the pregnant person.
• In the third trimester, the state's interest in protecting the potential human life outweighed the right to privacy, and states could prohibit abortions unless necessary to protect the life or health of the pregnant person.

Despite the ruling, many states passed laws that made accessing abortion extremely difficult. For example, in 1976, the Hyde Amendment, a national policy widely viewed as racist, became law. As a result, even with Roe v. Wade in place, abortion was challenging to access for many people, particularly those from marginalized communities.

In June 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to abortion. This decision has had a significant impact, with one in three women now living in states where abortion is not accessible, and several states working to pass bans. The overturning of Roe v. Wade has particularly affected communities of color, where systemic racism has long blocked access to healthcare and other opportunities.

The Supreme Court's decision was based on the right to privacy

The Supreme Court's decision in Roe v. Wade was based on the right to privacy. The Court ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to choose whether to have an abortion.

The Court's ruling recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. For the first time, Roe placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring on it the highest degree of constitutional protection, known as "strict scrutiny".

The Court held that the specific guarantee of "liberty" in the Fourteenth Amendment, which protects individual privacy, includes the right to abortion prior to fetal viability. The Court's decision in Roe was among the most controversial in U.S. history, with some critics arguing that it was an example of "judicial activism", meaning that the judges based their decision on personal views rather than existing law.

The right to privacy, in this context, was derived from the Due Process Clause of the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law". The Court interpreted this clause broadly, concluding that the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy".

The Court acknowledged that this right to privacy was not absolute and must be balanced against other government interests, such as protecting maternal health and prenatal life. The Court's decision in Roe v. Wade thus established a framework for legal abortions across the United States, allowing states to regulate abortion but only to the extent that such regulations did not place an "undue burden" on a person seeking an abortion.

The decision was controversial and criticised by some in the legal community

The Roe v. Wade decision was controversial and criticised by some in the legal community. Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way. Another is that the end achieved by Roe does not justify its means of judicial fiat.

Some critics called the decision a form of judicial activism, suggesting that the judges based their decision on personal views rather than existing law. Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights.

The decision also shaped the debate concerning which methods the Supreme Court should use in constitutional adjudication. The Supreme Court's decision in Roe was among the most controversial in U.S. history.

In addition to the dissent, Roe was criticised by some in the legal community, including some who thought that Roe reached the correct result but went about it the wrong way. American legal scholar John Hart Ely criticised Roe as a decision that was disconnected from American constitutional law. He said:

> What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure... The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.

Centrist-liberal law professors Alan Dershowitz, Cass Sunstein, and Kermit Roosevelt III have also expressed disappointment with Roe v. Wade. Jeffrey Rosen and Michael Kinsley echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights.

The decision was reversed in 2022

On June 24, 2022, the US Supreme Court ruled in Dobbs v. Jackson Women's Health Organization to overturn Roe v. Wade, eliminating the federal constitutional right to abortion in the United States. The ruling stated that the right to abortion was not "deeply rooted in this Nation's history or tradition", nor was it considered a right when the Due Process Clause was ratified in 1868.

The decision ended nearly 50 years of precedent, marking the first time in history that the Supreme Court has taken away a fundamental right. The ruling has been described as "devastating", and a "disaster for the rule of law and our country".

Since the Dobbs ruling, more than a dozen states have banned abortion outright, with more states working to pass bans. This has forced people to travel hundreds or thousands of miles to access abortion care or to carry pregnancies against their will, a grave violation of their human rights.

The reversal of Roe v. Wade has inflicted harm on Black, Latino, Indigenous, and other communities of colour, where systemic racism has long blocked access to opportunity and healthcare. It has also disproportionately impacted people with low incomes, young people, and people of colour, who already faced obstacles to abortion care.

The Supreme Court's decision to reverse Roe v. Wade has been met with widespread criticism and protests. Many have argued that the decision lacks a valid constitutional foundation, and that the proper solution would have been found through state legislatures and the legislative process.

The reversal of Roe v. Wade has also sparked concerns about the future of other rights, including the right to contraception and same-sex marriage, which rely on the same constitutional grounds.

The reversal of Roe v. Wade has had a significant impact on abortion access

The reversal of Roe v. Wade in 2022 has had a significant impact on abortion access in several ways. Firstly, it has removed the federal constitutional right to abortion, with the Supreme Court ruling that there is no federal constitutional right to abortion. This has resulted in a patchwork of state-by-state abortion laws, with some states banning abortion outright, while others have moved to expand or cement abortion rights. As a result, abortion access has become highly restricted or inaccessible in many parts of the country.

Secondly, the reversal has led to an increase in abortion bans and restrictions at the state level. In the months following the reversal, more than a dozen states banned abortion outright, with more states working to pass similar bans. These bans have had a disproportionate impact on marginalized communities, including Black, Latino, Indigenous, and other communities of color, where systemic racism has long blocked access to healthcare and other opportunities.

Thirdly, the reversal has limited the ability of healthcare providers to perform abortions. Even before the reversal, many healthcare providers faced obstacles to providing abortion care due to state laws and other restrictions. The reversal has further restricted their ability to provide this care, with some providers stopping abortion services altogether out of fear of legal consequences.

Finally, the reversal has forced people seeking abortions to travel long distances to access care or carry pregnancies against their will. This has particularly affected low-income individuals, people of color, young people, and others who already faced barriers to abortion care. The reversal has also led to an increase in self-managed abortions, which can be dangerous and lead to serious complications.

Overall, the reversal of Roe v. Wade has significantly impacted abortion access in the United States, with far-reaching consequences for individuals seeking abortions, healthcare providers, and the broader society.

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