The Overturning of Roe v Wade: A Geographical Lottery

(Photo by Gayatri Malhotra via unsplash)

On December 1st the United States Supreme Court were presented with submission on Mississippi’s ban on most abortions after 15-weeks. Having heard the arguments put to them, the conservative-leaning Court is weighing whether to overturn Roe v Wade [1973]; the decision that established a constitutional right to an abortion. If this decision is overturned, individuals will lose the federal constitutional protections to abortion, and will leave it up to the states to decide what individuals’ rights are in terms of being able to terminate their pregnancies according to their own will.

In the event of a fallout decision, many states have issued laws protecting the right to abortion, whilst in many other states, it is unclear what the protocol would look like in event Roe is overturned. 18 states have pre-Roe legislation intact and others intend to pass laws to restrict abortion to the maximum amount possible. In these particular states, it is safe to assume that abortion will be banned fairly quickly. There are only 13 states and D.C. that have protective measures in place, safeguarding the right to abortion.

The case, Dobbs v Jackson Women’s Health Organisation, concerns a Mississippi law banning most abortions following 15-weeks of pregnancy. This is much earlier than the foetal viability standard established by the decision in Roe. A decision isn’t expected until June, but in the coming months State legislatures are expected to engage abortion restrictions or protections in anticipation of a decision.

What did the Justices say? Justice Brett Kavanaugh noted that even if this decision-making power was returned to the states, abortion would still be available in a number of states. 4 other conservative Justices were incredibly critical of the 1973 Roe decision and 1992’s Planned Parenthood v Casey judgement which preserved the right to abort nationwide. Liberal Justice, Sonia Sotomayor contended women’s rights to abortion has been ‘on the books’ for nearly 50 years and has been repeatedly reaffirmed. She says that if the court were to overturn the Roe decision it would be political. This raises significant concerns for the separation of powers, as this decision will become another arrow in the quiver of what would seem a political judiciary. 

If Roe is overturned what does this mean for Americans? It is likely that states supportive of abortion rights will see a surge in out-of-state patients, putting an immense strain on these particular states as the capacity and funding to serve additional people is non-existent. Additionally, many people do not have the necessary funds to afford travel to these states; they do not have child care or family support, and may be unable to take time off from work to travel. If Roe v Wade is overturned, abortion will be safely available to those with the financial means to afford it. Though with an overwhelming population who cannot, the devastating consequences will fall to them.

In my opinion, the mere fact that the right to abortion is being questioned in the 21st century, is equivalent to spitting in the face of the progression of women’s rights. Not only does the questioning of women’s rights over their body have catastrophic effects for the fight for female autonomy, but a loaded judiciary has run the risk of politicising the courts. This may well be the beginning of the unravelling of the arduous fight for women’s rights in the west.

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