Reproductive justice advocates have woken up devastated this morning at the news that SCOTUS (Supreme Court of the US) is likely to overturn Roe v Wade. Reading a draft opinion written by Justice Alito and leaked to Politico magazine, it seems that the conservative majority of the Court has at last achieved its long-standing goal of overturning the constitutional right to abortion conferred under the right to privacy in the American Constitution.
SCOTUS is the highest Court in the United States and there is no appeal against its decisions. They are settled law until a further Supreme Court modifies or overturns them. They cannot be altered by anyone else, including the government. Currently, SCOTUS has a conservative majority (thanks to the Republican administration of Donald Trump), with several justices, notably Coney Barrett J and Kavanaugh J, who are outspokenly anti-abortion.
The draft opinion, in the case of Dobbs v Jackson Women’s Health Organisation, begins by stating that “[a]bortion presents a profound moral issue.” While this is true, it has been settled law since 1973, when Roe was decided, that the constitutional right to privacy conferred a right to make decisions concerning abortion for oneself. Alito J takes a sceptical view of this from the beginning. The opinion is written from a constitutional originalist point of view, which means that it reads the US Constitution in a manner conforming to the views and outlooks of its authors. This is in contrast to a living instrument doctrine, which reads a Constitution or other legal document in terms of the present day.
Roe v Wade is a landmark case in American law. The decision that a woman or pregnant person’s 14th Amendment right to privacy conferred a right to obtain a legal abortion was momentous. However, the Roe Court also stated that the right to obtain an abortion was not absolute. In the interests of the potential life of the foetus, or the health of the pregnant person, the government of the State in question could put limits or restrictions on the right to an abortion. Many American States have done so and severely restricted the right to abortion through vexatious limitations on the ability to access the procedure. This has been challenged before the Supreme Court previously in cases like Whole Women’s Health v Hellerstedt (2013), which concerned excessive restrictions on doctors who could perform abortions in Texas. In WWH, the restrictions were struck down as being too limiting on the right to access an abortion.
Roe has been controversial from the beginning. Opposed profoundly by religious and anti-choice groups on moral grounds, its reasoning was also opposed by conservative or originalist legal commentators and legislators, who felt that Roe overstepped what could reasonably be read into the constitutional right to privacy. This is the view that Alito J takes in his draft opinion in Dobbs.
He states that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” (5) He believes that the right to abortion is a newly invented right which does not root in American history and is therefore not within the purview of the Court to institute via a living reading of the Fourteenth Amendment. He believes that the matter of legalising (or not legalising) abortion should be left to the legislators of each State, elected by the people. He also believes that abortion should be a special case with regard to rights, because it involves a “potential life”(32).
The removal of abortion rights from the constitutional right to privacy is not just devastating for women and pregnant people, but it is also worrying with regard to other freedoms based on cases moored in that right, such as same-sex sexual activity (Lawrence v Texas) and equal marriage (Obergefell v Hodges). Although Alito J’s opinion states that this ruling just concerns abortion and not other rights, he also says that rights based on the Fourteenth Amendment must be “deeply rooted in this Nation’s history and tradition.” (14) It is not difficult to see a future conservative SCOTUS using this logic to overturn other rights and freedoms belonging to women, LGBTQ+ people, or other vulnerable minorities.
If this is the final opinion of SCOTUS on Dobbs, it is a profound setback to reproductive freedoms in the United States. 26 American States have ‘trigger laws’ which are certain to come into action when Roe is eventually overturned (whether this is the deathblow or not, with the current make-up of the Supreme Court, it is more or less inevitable that a challenge to Roe will eventually win). For now, we wait and see when the blow will fall.
Sandra Duffy 