Cecily Zamora
Roe v. Wade was a 1973 United States Supreme Court decision that ruled abortion was a constitutional right. The decision sparked controversy and criticism from the beginning, with many states enacting or attempting to enact laws to limit or regulate abortion. The ruling was based on the right to privacy and liberty afforded by the Fourteenth Amendment, but critics argue that the Constitution does not explicitly mention abortion, and that the matter should be left to state legislatures. The Supreme Court's decision in 2022 to overturn Roe v. Wade has been met with strong opposition, with concerns raised about the impact on women's rights and access to safe abortions.
| Characteristics | Values | |
|---|---|---|
| Roe v. Wade decriminalized abortion nationwide | The Supreme Court's ruling in Roe v. Wade on January 22, 1973, decriminalized abortion nationwide | |
| Roe v. Wade is embedded in a long line of cases concerning personal liberty in the realm of privacy | ||
| Roe v. Wade recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy | ||
| Roe v. Wade guaranteed a constitutional right to abortion | ||
| Roe v. Wade recognized that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right | ||
| Roe v. Wade held that restrictions on the right to abortion were subject to the most stringent level of constitutional review, often called "strict scrutiny" | ||
| Roe v. Wade permitted more regulation of abortion as pregnancy advanced but only when that regulation was evidence-based and consistent with how other similar medical procedures were treated | ||
| Roe v. Wade made state abortion bans unconstitutional | ||
| Roe v. Wade made abortion care legal, more accessible, and safer throughout the country | ||
| Roe v. Wade was unpopular and politically toxic | ||
| Roe v. Wade did not protect people's access to abortion | ||
| Roe v. Wade subjected otherwise law-abiding people to surveillance, arrest, investigation, prosecution, and other criminal penalties | ||
| Roe v. Wade inflicted harm on Black, Latino, Indigenous, and other communities of color |
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What You'll Learn
Roe v. Wade's impact on personal liberty and privacy
Roe v. Wade was a landmark 1973 US Supreme Court case that recognised a constitutional right to abortion. The decision held that the right to liberty in the Constitution, protecting personal privacy, includes the right to decide whether to continue a pregnancy. Roe was embedded in a long line of cases concerning personal liberty in the realm of privacy, becoming a foundation for individual liberty cases concerning privacy.
The Roe decision made state abortion bans unconstitutional, and abortion care legal, more accessible, and safer throughout the country. The ruling recognised that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. The Court decided that the Due Process Clause of the 14th Amendment, which says that no state shall "deprive any person of life, liberty, or property, without due process of law", implies a right to privacy.
However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. After fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health. The Court upheld several abortion restrictions and modified the Roe trimester framework.
The impact of Roe v. Wade on personal liberty and privacy was significant. For nearly five decades, the Supreme Court honoured Roe's core principle: that the Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion prior to fetal viability. The decision in Roe v. Wade sparked public opposition and academic criticism, in part because the Court ventured too far in the change it ordered and presented an incomplete justification for its actions.
The overturning of Roe v. Wade in 2022 threatens the constitutional foundations for a range of other liberty rights. The ruling ended the federal constitutional right to abortion in the United States, and as a result, one in three women now live in states where abortion is not accessible. The Supreme Court's ruling has inflicted harm on Black, Latino, Indigenous, and other communities of colour, where systemic racism has long blocked access to opportunity and healthcare.
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The Supreme Court's interpretation of the Constitution
In the years following the Roe v. Wade decision, the Supreme Court reaffirmed the constitutional protection of abortion access in multiple key cases. These included Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman's Health v. Hellerstedt. The Court's interpretation of the Constitution in these cases reinforced the core principle that the Constitution protects an individual's right to make private medical decisions, including the decision to have an abortion prior to fetal viability.
However, not all members of the Supreme Court agreed with this interpretation. Justice Thurgood Marshall, for instance, stated in his dissenting opinion in San Antonio Independent School District v. Rodriguez that privacy is a fundamental right. He criticized the majority opinion's reliance on Roe v. Wade in asserting this. Additionally, some argue that the Constitution is silent on the issue of abortion, and that state legislatures should find solutions through the legislative process rather than through an all-encompassing Supreme Court ruling.
The makeup of the Supreme Court changed between 2016 and 2020, with the appointment of three new justices known for their opposition to reproductive rights: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. This shift in the Court's composition led to a series of decisions that diluted Roe v. Wade. In 2022, the Court officially overturned Roe v. Wade, ending the constitutional right to abortion and marking the first time the Court had taken away a fundamental right. This decision in Dobbs v. Jackson Women's Health Organization abandoned nearly 50 years of precedent, and states have since enacted laws severely restricting or banning abortion.
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The role of state legislatures and the legislative process
The Roe v. Wade case of 1973 was a landmark decision by the U.S. Supreme Court, which legalized abortion across the United States, recognizing it as a constitutional right. However, the decision has been contentious, with some arguing that it is a travesty of constitutional law. One argument against Roe v. Wade is that the decision should be left to state legislatures and the legislative process, rather than a sweeping ruling from the Supreme Court.
State legislatures play a crucial role in shaping abortion laws within their respective states. In the wake of Roe v. Wade, many states attempted to enact laws to limit or regulate abortion. These laws took various forms, including parental consent requirements for minors, spousal notification laws, restrictions on the use of state funds for abortions, and bans on specific abortion procedures. State legislatures also have the power to restrict abortion access by imposing waiting periods, requiring abortions to be performed in hospitals rather than clinics, and mandating the involvement of multiple doctors.
The legislative process at the state level involves several steps. Typically, a bill is drafted and introduced in one of the state legislative chambers (usually the House of Representatives). The bill undergoes committee review, where it is scrutinized, amended, and voted on by a specialized committee. If the bill passes the committee stage, it proceeds to the full chamber for debate and a vote. If passed by the first chamber, the bill then moves to the second chamber (usually the Senate) and goes through a similar process of committee review and floor debate/vote. If the bill is amended in the second chamber, it goes back to the first chamber for approval of those amendments.
Once a bill clears both chambers, it is sent to the state governor for approval. The governor can sign the bill into law, or they may veto it, sending it back to the legislature with suggested changes. If the legislature makes the suggested changes, the bill can be sent back to the governor for signature. In some states, if the governor vetoes the bill, the legislature can override the veto with a supermajority vote. Once enacted, the law may be subject to legal challenges, particularly if it concerns abortion, as it involves constitutional rights and interpretations.
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The lack of protection for people's access to abortion
Roe v. Wade, the 1973 US Supreme Court case, legalized abortion in the United States. While the ruling guaranteed a woman's right to obtain an abortion, it did not protect people's access to abortion services. This lack of protection for people's access to abortion has had significant negative consequences and contributed to the ongoing debate surrounding abortion rights in the United States.
In the decades following Roe v. Wade, many states passed laws that made accessing abortion extremely difficult. For example, laws were enacted requiring parental consent for minors to obtain abortions, spousal notification, and consent laws. Some states also required abortions to be performed in hospitals rather than clinics and barred state funding for abortions. These restrictions disproportionately impacted people of color, people with low incomes, young people, and immigrants, creating barriers to equitable access to abortion services.
The Hyde Amendment, which became law in 1976, is another example of legislation that restricted abortion access. This national policy, widely viewed as racist, further limited access to abortion services, particularly for marginalized communities.
The makeup of the Supreme Court has also played a significant role in shaping abortion access. Between 2016 and 2020, anti-abortion politicians successfully appointed three new Supreme Court justices with records hostile to reproductive health and rights. This shift in the Court's composition ultimately led to the overturning of Roe v. Wade in 2022, ending the federal constitutional right to abortion.
The overturning of Roe v. Wade has had immediate and far-reaching consequences. As of June 2022, one in three women lives in states where abortion is not accessible, and 18 states have banned or severely restricted abortion. The loss of federal protection for abortion rights has disproportionately impacted marginalized communities, including Black, Latino, Indigenous, and other communities of color, exacerbating existing systemic racism and health disparities.
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The impact on marginalised communities and systemic racism
The overturning of Roe v. Wade will disproportionately impact marginalised communities, with Black, Indigenous, and people of colour (BIPOC) suffering the most. This is due to a variety of factors, including systemic racism, which has long blocked access to opportunities and healthcare for these communities. The loss of the national right to abortion will impact women of colour to a tragic degree, as part of a system that already marginalises them.
The cost of an abortion procedure is, on average, $500 out of pocket. This is unaffordable for the more than 1 in 9 women who live in poverty. When the cost of travelling out of state and legal fees are factored in, this becomes an impossible situation for women living in lower-income communities. This is a cycle of increasing poverty, created and deepened by systemic racism.
The loss of abortion rights will also disproportionately affect the health and financial security of marginalised groups. For example, carrying a pregnancy to term can endanger the pregnant person's life, disrupt educational plans, and change someone's career trajectory, compounding disadvantages for already marginalised groups. This is particularly true for people of colour, who are more likely to reside in states with more restrictive abortion laws.
The overturning of Roe v. Wade will also increase the number of "back-alley" abortions performed in unsafe and highly dangerous conditions, which will disproportionately affect marginalised communities. This will result in further criminalisation, imprisonment, morbidities, loss of employment, and even death for women in these communities.
The impact of the decision will be felt most acutely by historically excluded communities, including BIPOC, LGBTQ+, and people with disabilities. The decision will reinforce racial disparities and inequities among marginalised communities, exacerbating the systemic inequities that already exist.
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Frequently asked questions
Roe v. Wade was a 1973 U.S. Supreme Court case that legalized abortion in the United States.
Roe v. Wade was considered a travesty of constitutional law because it was argued that the Constitution does not explicitly mention abortion, and that the Supreme Court's ruling was an overreach of power. The decision to overturn Roe v. Wade in 2022 was influenced by the changing makeup of the Supreme Court, with anti-abortion politicians installing judges hostile to abortion rights.
The overturning of Roe v. Wade eliminated the federal constitutional right to abortion, and allowed states to ban or severely restrict abortion access. This has disproportionately impacted marginalized communities and communities of color, as abortion bans have been shown to inflict harm on Black, Latino, Indigenous, and other communities of color.
