LAST WEEK, THE US Supreme Court ruled that Roe v Wade – a landmark case protecting Americans the constitutional right to abortion – was overturned.
The ruling has prompted strong reactions from both sides of the abortion debate – pro-life campaigners rejoiced at the culmination of a 30-year effort to reverse the 1973 ruling, while outraged pro-choice activists warned that a ban on terminations would cause major suffering for women and pregnant people.
In the 50 years since Roe, the “abortion debate” has become a lightning rod for partisan politics in the US. Following last week’s ruling, some so-called “red states” – many in the Deep South and Midwest – have acted to outlaw terminations of pregnancy. Currently, five states ban abortion, abortion is potentially illegal or soon to be illegal in 11 states, and it is legal or legal for now in 35 states.
This week, The Journal’s The Explainer podcast looked at why and how Roe was overturned, and what it means for abortion rights in the US.
We spoke to Dr David Kenny, a constitutional law expert and associate professor at Trinity College’s School of Law, who detailed how the ruling highlights the contentious intersection of the American judicial and political systems.
Roe, Kenny explained, “held that the US constitution, in its 14th Amendment, had a sort of implied right to privacy that extended so far as to include the termination of pregnancies or abortion, up to the point of viability.”
This case transformed politics in the US, most notably in its effect on Supreme Court nominations.
The question of whether or not a judge being appointed would want to uphold, or perhaps overturn, Roe became one of the most crucial questions that a judge would face if they were going to be appointed to the US Supreme Court.
Since the 1980s, the Republican party has made a concerted effort to tip the balance of the Supreme Court in favour of overturning Roe. Donald Trump appointed three new judges during his term, giving the court a supermajority of conservatives.
In order to overturn Roe, the Supreme Court would have to issue a ruling on a case which was believed to be unconstitutional. Last week’s ruling, Dobbs v Jackson Women’s Health Organization, concerned a 2018 law in the state of Mississippi banning most terminations after 15 weeks.
Jackson Women’s Health Organization, Mississippi’s only abortion clinic, sued the state health officer Thomas E Dobbs, with the Mississippi State Department of Health, in March 2018.
For Dobbs to be constitutional, the court would have to determine that Roe was wrong.
The real question though, Kenny said, was “how far the Supreme Court would go – there is now such a strong majority of conservative justices, that I think everyone knew that Roe and Wade wouldn’t survive in its current form.
The question was whether or not it would be totally rolled back, or there would be some compromise measure that it wouldn’t remove the right completely, but it would make it more limited than it had been before.
One of the nine judges wanted this compromise, Chief Justice John Roberts. The other five conservative justices – including Trump’s three appointees – wanted to roll Roe back entirely.
“It’s the most full repudiation of that judgement that you could get,” Kenny said.
The ruling means that abortion is no longer a protected right under the US’s federal constitution, which takes precedence over individual state constitutions and laws.
States now have the power to make their own laws on abortion, which could potentially result in “50 different abortion regimes across America”, said Kenny.
“Some will be the same as they were before Roe and Wade, some will be very, very different, very restrictive.”
In most cases, states that outlaw abortion will have provisions to protect the life of the pregnant person – but “that’s much harder to do than it seems”, as Ireland is well aware, he noted.
Other provisions to make exceptions for rape and incest are also a legal minefield. “I’m not sure they are fully aware of how difficult it is going to be to provide for those cases,” Kenny said.
Abortion rights campaigners have warned that overturning Roe will spell major personal and legal harm for women and pregnant people, from the dangers of so-called ‘back-alley’ terminations to the risk of prosecution for breaking new laws.
There has been a general statement that states don’t want to prosecute pregnant people getting abortions, they want to prosecute providers, but there is no guarantee that that will be the case.
Following last week’s ruling, liberal campaigners and politicians were quick to point to a line in Justice Clarence Thomas’s opinion, which said that three cases protected under the same doctrine as Roe should be reconsidered: cases concerning access to contraception, same-sex marriage and same-sex physical intimacy.
Justice Thomas – considered to be the most conservative of the nine judges – reasoned that if the constitution does not protect the right to abortion, perhaps it doesn’t protect these rights, either.
Kenny explained that the US constitution, which came into force in 1789, “doesn’t contain as much specificity on rights and other matters as our constitution – it speaks even more generally by virtue of its age.”
It’s “incredibly difficult” to amend the US constitution, he added: “It needs a supermajority both in Congress and of the states agreeing to an amendment.”
Given how polarised politics has become in the US, it’s unlikely that the constitution will be amended in any way in the near future.
Abortion rights activists had long warned that Roe was “vulnerable”, and questioned why the Democrats never codified abortion rights in federal law while they still could.
Kenny said: “The reasoning of Roe and Wade was long criticised. It was, perhaps even for supporters of the judgement, not the best-argued judgement in the US Supreme Court’s history.”
“There might have been better ways to try to recognise a right to abortion: one is often said to have been the equal protection clause of the 14th Amendment, which guarantees essentially equal protection of the law.
“But in the end, I’m not sure that hugely matters. You’re facing a conservative majority on the US Supreme Court that doesn’t want this right at all.”
Listen to the full interview with David Kenny on The Explainer Podcast.
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