Opinion | Roe v. Wade and the Fall of Reproductive Rights Across the United States
Reuters/Sarah Silbiger
In June, the highest court of the self-proclaimed “leader of the free world” is expected to reverse a pivotal precedent in the history of women’s rights. The US Supreme Court is expected to reverse the precedent that made abortion an American constitutional right, in June 2022.
The Canadian abortion precedent is R v. Morgentaler in 1988, which amended section 251(4) of the Criminal Code, where abortion was permitted in accredited hosiptals with the permission of the hosipital’s Therapeutic Abortion Committee. The Supreme Court of Canada ruled that the Criminal Code section that limited access to abortions violated one’s right to security of person under section seven of the Charter of Rights and Freedoms. This ruling made it unconstitutional to give the choice of whether someone can have an abortion to anyone but the recipient, annihilating Therapeutic Abortion Committees in hosipitals and making abortions accessible to those who want them.
Roe v. Wade, the American equivalent, was a 1973 US Supreme Court case that ingrained the right to an abortion in the constitutional rights of Americans and returned the liberty to one’s reproductive organs to their owners. The tragic passing of Justice Ginsburg, a long-time judicial pioneer of women’s rights and the retirement of reproductive rights-supporting centrist Justice Kennedy, struck chaos into the US Supreme Court. Three Justices were appointed within the former President’s four-year reign, creating a six-to-three conservative majority, or a six-to-three majority of those who are stuck in the Middle Ages.
That conservative majority is what led to a majority opinion draft written by US Justice Samuel Alito. The draft, written in February, was leaked to Politico, a reputable political news source, on May 2, 2022. This draft opinion reveals that the current majority of the American Supreme Court will ultimately vote to end the precedent of Roe v. Wade, through Dobbs v. Jackson Women’s Health Organization, the case that they are deciding on. Dobbs v. Jackson Women’s Health Organization, is a case questioning the constitutionality of a Mississippi law that restricts abortion before vialibility. The law goes against the current precedent of Roe, however the majority of American Justices do not believe that it goes against the US Constitution.
Once the curse of regression struck the upholders of liberty and justice, state level Republicans leaped to start crafting their equal part annoying, equal part misogynistic, anti-abortion legislation. Many states already had tricks up their sleeve to make this medical procedure as inaccessible as possible, like mandatory waiting periods between receiving mandatory state counseling and receiving your procedure and restrictions on using private insurance or medicaid to fund the procedure.
On May 15, 2021, Texas Governor Greg Abott, enacted SB 8, a law seemingly immune to constitutional criticism. Like no other before it, this law makes abortion after fetal cardiac activity is detected, illegal. However, it is enforced bounty hunter, wild west style -any individual has the opportunity to gain $10 000 in a civil law case against anyone who “aids or abets” the performance or inducement of an abortion. Not only does this law bypass constitutional liability through its untoward enforcement, it also gives Texans opportunities to make back the money they lost in the Texas power outages. Thanks Governor Abott!
Republican lawmakers are apparently unfamiliar with the saying “snitches get stitches” because this ingenious display of authoritarianism really caught on. Idaho and Oklahoma passed similar laws after Texas. The Texan law has been called up to the Supreme Court three different times, and each time the court has refused to hear it.
The law that challenges Roe is Mississippi’s House Bill 1510 or the Gestational Age Act. Mississippi restricts abortion through state law after 15 weeks, making an abortion provider liable to a criminal court. There are narrow exceptions in fatal fetal abnormalities or in life-endangering pregnancies. The key difference of state enforcement is what interests the US Supreme Court. If it is found constitutional, which the current majority opinion suggests, then it would reverse the right of an abortion within the first and second trismesters, or until viability, meaning until the fetus could survive without the mother, as granted by Roe v. Wade, pushing back American womens’ rights by almost half a century.
The six-to-three conservative majority and the majority draft document makes it almost certain that when they reach their decision in June 2022, the precedent of Roe v. Wade will be overturned. Republicans in red states have taken notice of that and have started passing laws that are unconstitutional. These laws that go in direct violation of Roe will be blocked temporarily by their state’s Supreme Court, however will be re-enacted once the barrier of Roe is removed. Florida is one example. Copying the Mississippi law, the performance of abortion is illegal after 15 weeks with the only exceptions being in cases of fatal fetal abnormalities or if the birth would result in serious injury or death to the pregnant person. Arizona enacted a similar law, scheduled to be in effect in July, after the Mississippi decision. In Oklahoma, performing an abortion is now a felony charge that could result in up to ten years in jail or up to a $100,000 fine. The exception being in medical emergencies. This law prohibits abortions at all points in a pregnancy, completely erasing women’s bodily autonomy. Senator Greg Treat, a sponsor of the law says,“we will continue to push that envelope as far as we possibly can,”the envelope being any remaining illusion of control women have over their own bodies. Florida and Oklahoma are not the only states that believe that Roe v. Wade will be overturned. Twenty-two states either have Roe-trigger laws or pre-Roe bans. Roe-trigger laws are laws that will become immediately active once Roe is overturned, either restricting or completely banning abortion in that state. Pre-Roe bans are old inactive laws made before 1973 that were never removed and will become active once Roe is overturned. The Guttmacher Institute, a leading American pro-choice research and policy organization, estimates that if Roe is overturned, 26 states will heavily restrict or completely ban abortion.
One of those states is Kentucky. The state doesn’t seem to need the Supreme Court’s approval to remove women’s bodily anatomy and give it to the gametes. Kentucky has banned abortions after 15 weeks with no exceptions for the pregnant person’s life. They have also created requirements for abortions happening before 15 weeks that are financially and logistically impossible for abortion providers, but also scientifically blasphemous and just plain insulting. The “Cabinet for Family and Health Services” gets to decide which doctors can prescribe abortive pills for medical abortions, which is a lovely display of authoritarianism and disregard for the legal qualifications of MD’s. It also begs the question, which doctors will they choose, if any? Surgical abortion providers must also provide a combination birth/death certificate or still-birth certificate for every procedure. It is unclear who exactly is going to tell republican lawmakers surgical abortions are not still-births or births of any kind. On top of a certificate, abortion providers are required to either “cremate or inter fetal remains”. It is insulting that the level of humanization of gametes is not extended to the actual living person that they are inside of. These ‘requirements’ are made to shut down abortion clinics and deter medical professionals from the procedures. However, the mere serious, legal suggestion of a certificate and burying of whatever cellular remains is humiliating towards the person requiring this medical procedure. Especially that their own life will be ignored if at risk later in the pregnancy.
The overturning of Roe v. Wade will be catastrophic for American women and people with uteruses. It is extremely unlikely that Canada’s constitutional protection of abortion will be reversed. However, the accumulative population of female people in the 26 American states expected to ban or severely restrict abortion after the overturning of Roe v. Wade is 79.9 million. 79.9 million people will be directly affected by this verdict, as well as the entire reproductive rights movement.
Roe v. Wade was an international standard for human rights. Mexico only recently decriminalized abortion, joining Colombia, Uraguay, Argentina, and Cuba in South America. Ireland’s historic referendum in 2018 amended its abortion ban. Andorra, Liechtenstein, Malta, Monaco, Poland and San Marino are the only remaining European countries with active abortion bans; Poland’s ban recently enacted in 2020.
However, in Canada’s southern neighbour, women are victims to changing state politics, where Republican-controlled states could impose any abortion law they would like. Justice Alito’s majority opinion will be a political ruling, not a constitutional one. If the goal was truly to limit the number of abortions happening, lawmakers would need to focus on sex education and birth control accessibility. Guttmacher reports that in the United States between 2011 and 2017, the number of abortions fell by 19 per cent, the rate of abortion per 1000 women fell by 20 per cent, and the ratio of abortions to every 100 pregnancies fell 13 per cent. The trend of abortion in the US is a downward one, and that is naturally occurring without needing restrictive laws. There is no debate because there is no justification; believing in liberty and democracy means that you cannot impose a condition like pregnancy and a physical hardship like birth on an unwilling person. Enshrining the disregard for bodily anatomy into their constitution is not a step forward for America, it is 50 steps back.