Who Really Chooses: Abortion Law In America

Abortion laws in the United States are determined by the Supreme Court and individual state governments. The Supreme Court's 1973 ruling in Roe v. Wade decriminalized abortion nationwide and established a federally mandated uniform framework for state legislation on the subject. However, the Court's 2022 decision in Dobbs v. Jackson Women's Health Organization overturned Roe and Casey, allowing individual states to regulate any aspect of abortion not preempted by federal law.

The Supreme Court's ruling in Roe v. Wade

The Court's decision was based on the right to privacy in the United States, which is a federally constitutionally-protected right. The Court listed several landmark cases where it had previously found an implied right to privacy in the Constitution.

The Court did not recognise a right to abortion in all cases. It held that a mother had a right to abortion until viability, a point to be determined by the abortion doctor. After viability, a woman could obtain an abortion for health reasons, which the Court defined broadly to include psychological well-being.

The Court declined to resolve the issue of when human life or personhood begins, writing:

> We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

Instead, it pointed out that historically, under English and American common law and statutes, "the unborn have never been recognised... as persons in the whole sense", and thus the fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment.

The Court declared that the state has a "compelling interest" in protecting "potential life" at the point of viability. Under Roe v. Wade, state governments may not prohibit late terminations of pregnancy when "necessary to preserve the life or health of the mother", even if it would cause the demise of a viable fetus.

The Roe decision imposed a federally mandated uniform framework for state legislation on the subject. It also established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy.

In 2022, Roe v. Wade was overturned by the Supreme Court in Dobbs v. Jackson Women's Health Organization. This ruling restored the ability of states to ban abortion.

The impact of Dobbs v. Jackson Women's Health Organization

The Impact on Abortion Rights and Access

The decision in Dobbs v. Jackson Women's Health Organization had a significant impact on abortion rights and access in the United States. By overturning Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court removed the federal protection for a pregnant woman's right to get an abortion. This effectively returned the power to regulate abortion to the individual states, allowing them to impose any restrictions on abortion as long as they did not conflict with federal law.

As a result, abortion became greatly restricted or banned in many states, particularly in the Southern United States. However, some states, such as California, Vermont, and Michigan, took steps to protect abortion rights by enshrining them into their state constitutions. The decision also sparked concern over access to medication abortion options and led to an increase in demand for contraception.

Public Opinion and Protests

The decision in Dobbs v. Jackson Women's Health Organization had a significant impact on public opinion and sparked widespread protests. Support for legalized abortion access rose by 10 to 15 percentage points in the year following the decision. Referendums conducted in several states, including Kansas, California, and Michigan, came out in favor of abortion rights by broad margins.

The decision also led to protests both in support of and against abortion rights, with clashes between police and protesters in some cities. The leak of a draft majority opinion in May 2022 further intensified the debate, with large-scale marches and protests organized by abortion rights groups.

Political and Legislative Impact

The decision had a significant impact on the political landscape, with Democrats using the issue to try to offset the inflation surge and President Biden's low approval ratings. Republicans, on the other hand, faced some concern that the negative reaction to the decision could work against them in the upcoming midterm elections.

In the aftermath of the decision, Congress introduced bills related to abortion rights, with House Democrats passing two bills to enhance abortion rights and protect access. However, these bills faced an uphill battle in the Senate and were expected to have difficulty passing.

At the state level, the decision led to the introduction of new abortion restrictions in several Republican-controlled states, with some states invoking trigger laws to immediately ban abortion. On the other hand, some states with Democratic-controlled legislatures took steps to expand abortion access and protect abortion rights.

International Reactions

The decision in Dobbs v. Jackson Women's Health Organization also sparked reactions from international leaders and organizations. The United Nations High Commissioner for Human Rights expressed concern, calling the decision a "major setback" for sexual and reproductive health and rights. The Director-General of the World Health Organization also criticized the decision, saying that women's rights and health must be protected.

Some foreign leaders, including Canadian Prime Minister Justin Trudeau and British Prime Minister Boris Johnson, condemned the decision, while others, like Brazilian President Jair Bolsonaro, signaled their approval. The ruling was also met with criticism from American Jewish organizations and American Muslims, who said it curtailed religious freedom and reflected only Christian right views.

Impact on Other Rights and Liberties

The decision in Dobbs v. Jackson Women's Health Organization also raised concerns about the potential impact on other rights and liberties that are not explicitly enumerated in the Constitution. Justice Clarence Thomas's concurrence suggested that the Court should reconsider other cases that granted rights based on substantive due process, such as the right to contraception and same-sex marriage.

This sparked fears that other established rights could be jeopardized, with some legal experts cautioning that the interpretation of the Constitution in the decision could harm women, minorities, and other marginalized groups. However, Justice Brett Kavanaugh sought to allay these fears, stating that the decision did not threaten or cast doubt on other precedents.

The criminalisation of abortion

In the United States, abortion is a highly divisive issue, with laws varying significantly from state to state. While some states prohibit abortion at all stages of pregnancy, others permit it up to a certain point, and some allow abortion throughout a woman's pregnancy. However, the criminalisation of abortion is not uniform across the country.

In some states, such as Alabama, Arkansas, and Oklahoma, abortion is illegal with very few exceptions, such as to preserve the life of the pregnant individual. In these states, performing an abortion can result in lengthy prison sentences and hefty fines. On the other hand, states like Alaska, California, Colorado, and Vermont have legalised abortion at all stages of pregnancy, with varying restrictions such as parental notification or consent laws.

The legal status of abortion in the United States has been a subject of debate and controversy, with the Supreme Court playing a pivotal role in shaping abortion laws. In 1973, the Supreme Court's Roe v. Wade decision decriminalised abortion nationwide, ensuring that states could not ban abortion before the point of fetal viability. However, this decision was overturned in 2022 by Dobbs v. Jackson Women's Health Organization, allowing individual states to impose regulations on abortion.

The social stigma of abortion

Abortion stigma is a prevalent concept in abortion scholarship, abortion activism, digital and traditional media, and in the area of public policy. Abortion stigma is generally defined in terms of individual-level beliefs, behaviours, and attributes. It is a negative attribute ascribed to women who seek to terminate a pregnancy that marks them, internally or externally, as inferior to ideals of womanhood. Abortion stigma is often used to describe broad patterns of beliefs, attitudes, and attributes.

Abortion stigma is a social process that is always contested. It is a dynamic process that is contingent and is not inherent to abortion itself. Abortion stigma is not a set of static beliefs, values, or attributes but a dynamic process that is always contested. Abortion stigma has a negative impact on the mental health of those who experience it.

Abortion stigma is a barrier to safe abortion and can lead to unsafe abortions. In places where abortion is stigmatised, criminalised, or restricted, people are forced to resort to unsafe abortions. The criminalisation of abortion has a compounding impact on those who are already marginalised. Health services, in general, are less accessible to people on low income, refugees and migrants, LGBTI people, and racialised and Indigenous people.

Abortion stigma is a common experience for women in both Kenya and India. Women in both countries talked about their perceptions of how community members felt about the subject. Many women said they thought people in their communities disapproved of abortion in general. While many women said they believed people in their community had negative beliefs about abortion, very few told us about situations in which they directly experienced abortion-related stigma.

Women in both countries talked about their feelings of self-judgment when making the decision to have an abortion. Several women mentioned feeling that "it was wrong" to seek abortion or spoke about feeling "guilt". One woman said that having an abortion is "not respecting myself. It's like [I] am doing something wrong to myself". Another said, "I felt I have done a very big sin". Some women were specific about the source of these feelings, with a number mentioning religion.

Women in both countries commonly said they also feared being judged or mistreated during their service. Some women said they expected criticism or judgement from clinic staff for particular reasons related to their pregnancy and contraceptive history. A few women mentioned potential legal consequences of seeking an abortion, though two in Kenya mentioned concerns the clinic staff would report them to the legal authorities for seeking an abortion.

Despite participants' fears about the abortion service and low expectations of how they would be treated, all women in this study ultimately did obtain abortion services, and most said their experiences receiving care were substantially better than they had expected. The large majority of participants in this study received services at private not-for-profit facilities, and these findings primarily reflect experiences of care at these particular facilities.

The right to bodily autonomy

The concept of bodily autonomy gained prominence in the abortion discourse following the 1973 Roe v. Wade ruling by the US Supreme Court, which recognised a woman's right to privacy and, by extension, her right to make decisions about her body and reproductive health. This ruling set a precedent for abortion laws across the nation, guaranteeing the right to safe and legal abortion.

However, the issue of abortion remains divisive, with those opposing abortion arguing that it infringes on the fetus's right to life. This conflict between bodily autonomy and the right to life has been a subject of ethical and legal debate, with varying opinions on the moral and philosophical grounds of each perspective.

The abortion-rights movement advocates for patient choice and bodily autonomy, asserting that individuals should have the freedom to make decisions about their own bodies. They believe that criminalising abortion restricts individuals' liberty and infringes on their fundamental rights.

On the other hand, the anti-abortion movement maintains that the fetus has inherent rights that should be protected by law. They argue that abortion is a form of violence against the unborn child and that parents have a special obligation to their children, even before birth.

The debate surrounding bodily autonomy and abortion is complex and multifaceted, involving ethical, legal, and social considerations. It continues to shape the legal landscape of abortion in America, with states now having the authority to impose their own regulations following the overturning of Roe v. Wade in 2022.

Frequently asked questions