Power Dynamics Of Abortion Lawmaking

Abortion laws vary significantly worldwide, with some countries liberalising abortion laws and others restricting access. In the US, abortion laws vary by state, with some states prohibiting abortion entirely and others permitting it up to a certain point in a woman's pregnancy. The Supreme Court's 2022 decision to overturn Roe v. Wade removed federal protection for abortion rights, allowing states to impose their own regulations. This has resulted in a patchwork of abortion laws across the country, with some states criminalising abortion and others enshrining abortion rights into their state constitutions. Public opinion on abortion is also shifting, with increasing support for abortion rights among Latinos in Arizona. Globally, there is a trend towards liberalisation of abortion laws, with over 60 countries and territories making abortion more accessible in the last 30 years. However, restrictive abortion laws still cause harm and violate human rights, particularly in developing countries. The decriminalisation of abortion aims to remove criminal sanctions and treat abortion as a form of healthcare. While international human rights bodies have called for progressive abortion law reform, the reality is that abortion laws are shaped by political, health, legal, and socio-cultural factors unique to each country.

The role of the Supreme Court in abortion law

The Supreme Court's ruling in Roe v. Wade was among the most controversial in U.S. history. The decision also shaped the debate concerning which methods the Supreme Court should use in constitutional adjudication. The ruling held that the Due Process Clause of the Fourteenth Amendment provided a fundamental "right to privacy", protecting a pregnant woman's right to an abortion. It also held that this right was not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Supreme Court established a pregnancy trimester timetable to govern all abortion regulations in the United States. During the first trimester, the Court ruled that a state government could place no restrictions on women's ability to choose to abort pregnancies other than imposing minimal medical safeguards. From the second trimester onwards, the Court ruled that evidence of increasing risks to the mother's health gave states a compelling interest to enact medical regulations on abortion procedures. From the beginning of the third trimester, the Court ruled that a state's interest in protecting prenatal life became so compelling that it could legally prohibit all abortions except where necessary to protect the mother's life or health.

In 2022, the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, ending the constitutional right to abortion. This decision sparked protests and has had a significant impact on abortion laws and access across the United States.

The impact of abortion law on marginalised communities

Abortion laws have a profound impact on marginalised communities, who often face additional barriers to accessing safe and legal abortions. The criminalisation of abortion and restrictive laws disproportionately affect those who are already marginalised, including low-income individuals, refugees, migrants, LGBTI+ people, and racialised and Indigenous people. Here are some ways in which abortion laws impact marginalised communities:

• Health Risks and Lack of Access to Safe Abortions: In places where abortion is criminalised or highly restricted, people often resort to unsafe abortions, which can have fatal consequences such as maternal deaths and disabilities. This is especially true for people from marginalised communities who may have limited access to health services and face barriers to seeking private care.
• Social and Economic Barriers: Marginalised communities often face social and economic barriers that hinder their ability to access abortions. For example, some people may not be able to afford to take time off work or travel to another state or country to receive abortion services. Additionally, social stigma and conservative attitudes, often reinforced by religious institutions, can make it difficult for individuals to exercise their reproductive rights.
• Intersectional Discrimination: Abortion laws can intersect with other forms of discrimination and marginalisation. For example, transgender and gender non-conforming individuals are more likely to face harassment in medical settings and are often refused treatment due to their gender identity. Marginalised communities, such as racialised and Indigenous communities, may also face deeper historical marginalisation and denial of their reproductive rights.
• Criminalisation and Legal Barriers: In some countries, abortion is criminalised, and those who seek or provide abortions can face legal consequences. This further marginalises individuals who may already be vulnerable and have limited access to justice and social services.
• Lack of Information and Support: Marginalised communities may have limited access to information and support regarding their reproductive rights. This includes a lack of sex education, access to contraception, and knowledge of safe abortion options.
• Wider Impact on Health and Financial Stability: The lack of access to safe and legal abortions can have far-reaching consequences for marginalised communities. For example, carrying an unwanted pregnancy to term can endanger the pregnant person's life, disrupt educational plans, and affect their career trajectory, exacerbating existing inequalities.

It is important to recognise that the impact of abortion laws on marginalised communities is complex and interconnected. Addressing these issues requires a comprehensive approach that tackles social, economic, and political inequalities, as well as ensuring that abortion is decriminalised and accessible to all.

The influence of religion on abortion law

Religion has a significant influence on abortion laws, with the religious influence over a country's population being one of the massive determining factors on the legality of abortion. The religious views on abortion span a broad spectrum, with some religions taking a strong stance against abortion, while others adopt a more permissive approach.

Influence of Religious Conservatives

Many religious conservatives perceive abortion as murder and believe that legalized abortion is a threat to social, moral, and religious values. The influence of religious conservatives has resulted in restrictive abortion laws and policies, making it difficult for women to access safe and legal abortions. This is particularly true in predominantly Christian regions, such as Northern Ireland, where abortion is illegal unless it endangers the mother's life. Similarly, in the United States, the influence of Christian activists and lawmakers has led to restrictive abortion laws, such as the Hyde Amendment, which prevents federal dollars from paying for abortion expenses.

Religion-Based Stigma

Religion also plays a role in creating abortion stigma, with religious doctrines and communities often condemning abortion and those who seek it. This stigma can lead to internalized shame, guilt, and conflict for women considering or undergoing abortion, even if they do not personally hold religious beliefs. The fear of judgment and condemnation from religious family and community members is a significant factor in the felt and enacted abortion stigma experienced by women.

Religious Exceptions and Nuanced Positions

However, it is important to note that religious views on abortion are not absolute, and there are exceptions and nuanced positions within religious traditions. For example, some religions may permit abortion in cases of rape, incest, or when the mother's life is at risk. Additionally, some religious individuals may hold deviating opinions from their denomination's official stance on abortion.

Impact on Policy and Lawmakers

In conclusion, religion has a significant influence on abortion law, shaping public opinion, informing policy decisions, and impacting the experiences of women seeking abortions. While religious conservatives play a prominent role in opposing abortion, it is important to recognize that religious views on abortion vary widely, and some religious groups advocate for abortion rights. Ultimately, the interplay between religion and abortion law is complex and varies across different cultural and social contexts.

The role of state constitutions in abortion law

I. Historical Constitutional Analysis: State Traditions of Personal Autonomy

Some state courts have emphasised the concept of autonomy, recognising the right of individuals to control their own bodies without external influence or coercion. These courts have interpreted their state constitutions and historical traditions more liberally compared to federal jurists, who have often employed a narrow and conservative interpretation to reject rights related to intimacy, same-sex marriage, and abortion. States with a strong tradition of personal autonomy in their constitutions include Kansas and Montana.

II. Abortion as a Fundamental Right: Decisions Grounded in Privacy

While the US Constitution does not explicitly mention a right to privacy, state constitutions in several states, such as Alaska, Florida, Minnesota, and Montana, have recognised privacy rights. These states have relied on these privacy provisions to establish strong protections for abortion rights, filling the gap left by the federal courts' departure from a privacy analysis in abortion-related cases.

III. Anti-Discrimination Principle: Decisions Requiring Equal Treatment for People Seeking Abortion

The US Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees. However, high courts in several states, including Alaska, Arizona, and New Mexico, have taken a different approach. These state courts have struck down laws that treat people seeking abortions differently from those continuing pregnancies, ensuring equal treatment under the law. Additionally, in one state, an abortion restriction was treated as a form of sex discrimination, a stance that federal courts have failed to adopt.

The Impact of State Constitutions:

State constitutions and courts are now at the forefront of protecting abortion rights and access, especially in highly restrictive states. Over the decades, state courts have built a robust body of jurisprudence that recognises personal privacy, autonomy rights, equality principles, and the historical and textual foundations of abortion protections. This has resulted in stronger legal grounds for abortion rights at the state level, independent of federal law.

Furthermore, state constitutions allow for greater flexibility in guaranteeing abortion rights and reproductive autonomy. For example, four states (out of 17) have codified the right to abortion in their constitutions, and 12 states explicitly permit abortion before viability or to protect the life and health of the pregnant person. Additionally, 11 states and the District of Columbia have implemented protections for abortion providers and related individuals from out-of-state abortion restrictions and bans.

In conclusion, state constitutions play a pivotal role in shaping abortion laws and protecting reproductive rights in the United States. Through their unique constitutions and court systems, states have the power to expand and strengthen abortion rights, even in the absence of federal protection.

The effect of abortion law on maternal mortality

Abortion laws have a direct impact on maternal mortality, with restrictive legislation increasing the risk of complications and deaths from unsafe abortions. The World Health Organization (WHO) has identified abortion as one of the safest medical procedures when performed following their guidelines. However, when access to safe and legal abortions is limited, women resort to unsafe methods, leading to increased health risks.

The Impact of Restrictive Abortion Laws

Restrictive abortion laws create barriers to access, particularly for low-income individuals, people of color, immigrants, and non-English speakers. These laws result in geographic, transportation, and financial obstacles, making it challenging for pregnant individuals to obtain abortions. The consequences of reduced access to safe abortions are severe, with an estimated additional 140 maternal deaths annually in the United States if a total abortion ban were implemented. This would disproportionately affect non-Hispanic Black individuals, with a projected 33% increase in maternal deaths within this demographic.

The Role of Abortion Education and Training

Abortion education and training for medical professionals are crucial in ensuring safe abortion access. However, abortion education is often lacking in medical school curricula, and residency programs may not provide adequate training opportunities. This lack of education exacerbates existing racial inequities in maternal health, as abortion restrictions disproportionately impact Black birthing people, who already face higher rates of maternal mortality and morbidity. Improving abortion education and training can help address these disparities and ensure that future physicians are equipped to provide essential abortion care.

The Impact of Legal Abortion on Maternal Mortality

The legalization of abortion has been shown to have a significant impact on maternal mortality rates, particularly for non-white women. Studies indicate that legal abortion lowered non-white maternal mortality by 30-40% and averted 113 non-white maternal deaths in the first year of legalization. Early state-level legalizations played a crucial role in improving maternal health outcomes, even more so than the Roe v. Wade decision.

Case Studies: The Impact of Abortion Bans

The implementation of abortion bans has had devastating consequences, as evidenced by the cases of Amber Thurman and Candi Miller, who died as a result of being unable to access legal abortions and timely medical care. In these cases, the delay in receiving necessary medical procedures due to restrictive abortion laws led to fatal outcomes. Their deaths were deemed preventable by maternal mortality review committees, highlighting the direct link between abortion bans and increased maternal mortality.

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