U.S. Constitutional Right to Abortion Undermined by Supreme Court’s June 24 Overturn of Roe vs. Wade

This post is also available in: hrvatski (Croatian)

Prepared by: Julia Lemmon

 

On 24 June 2022, the U.S. Supreme Court, with a 5-4 majority ruling, decided to overturn the 1973 landmark case of Roe versus Wade that gave women and those able to give birth the right to an abortion at the federal level, amongst other things. The overturning of this 50 year-long precedent is a serious threat to women’s access to reproductive healthcare, bringing about a new wave of hundreds of pro-choice protests occurring immediately after the decision was announced. This ruling has also increased the distrust into the Supreme Court, especially since some of the judges that sided in favour of overturning Roe versus Wade misled the Senators during their Senate hearing process prior to confirmation as to whether they would support overturning Roe. One day before this overturning of Roe versus Wade, the Supreme Court decided on another paramount legal case, New York State Rifle & Pistol Association versus Bruen, with their decision allowing the expansion of gun rights and the weakening of gun control across the nation. In the new normative reality of the Unites States, dominated by ultraconservative agendas, guns (twice as often owned by men than women) have more rights to independence and autonomy than women’s bodies do.

About half of the states in the United States are expected to produce bans or limitations on abortions while others have moved to codify the legality of abortion and some states are still undecided. After the overturn of Roe vs. Wade, 1 in every 2 women or girl in the U.S now lives in a state where legal access to abortion is not guaranteed.

1.     States heading towards abortion ban: There are 16 states with 16 million women of reproductive age in which trigger bans of abortion took place (meaning that once Roe was overturned, abortion was either immediately outlawed, the ban needs state official certification to go into effect, or the ban goes into effect after 30 days). These states include Wisconsin, South Dakota, Oklahoma, Missouri, Arkansas, Alabama, Kentucky, Idaho, Wyoming, North Dakota, Texas, Mississippi, Tennessee, Utah, Louisiana, and West Virginia.

2.     States with undetermined legal status of abortion after Roe vs. Wade overturn: There are 9 states with 11 million women of reproductive age, including Montana, Nebraska, Kansas, Iowa, Indiana, Michigan, Pennsylvania, Virginia, and North Carolina where either the lawmakers or courts having the responsibility of making that decision. It means that legal access to abortion depends upon the outcomes of legislative battles to codify the right between the state’s governor and the state’s legislature, court rulings on legal cases that arise about abortion rights, and results of special sessions that some governors are calling to pass abortion bans.

3.     States that guarantee and provide abortion care: There are 18 states with 26.5 million women of reproductive age, plus one territory that have codified the legality of abortion. These pro-choice states include: California, Oregon, Washington, Hawaii, Connecticut, New York, Vermont, New Jersey, Delaware, Maryland, Maine, New Hampshire, Illinois, Minnesota, Colorado, Alaska, New Mexico, and Nevada as well as the District of Colombia. Some of them have committed to and expanding abortion access within their state lines, such as New York, California, Connecticut, Oregon, and New Jersey.

Malcolm Murdoch/flickr

Global impact of Supreme Court’s decision

The consequence of the Supreme Court’s decision is detrimental not only in respect to the U.S. women’s reproductive health, rights and general sense of safety, but also in respect to the United States’ global standing as a democratic country that protects women’s human rights, access to healthcare and gender equality.

Over the past 30 years, around 60 countries expanded laws and made progress towards promoting sexual and reproductive health rights. Instead of joining this promising trend, the United States has joined Poland, El Salvador, and Nicaragua as the only countries who have ever retreated back on earlier rulings regarding abortion. The overturning of Roe could be seen as a “social license to ban”, further eroding access to abortion across the globe and fuelling anti-abortion and anti-women’s rights protests, religious fundamentalist and misogynistic social movements, political agendas, and popular sentiments globally.

Because of the U.S. position in the world, this could be seen as a precedent to re-evaluate access and stances on abortion and women’s rights. Implementation of abortion laws are at least somewhat, if not heavily, influenced by social norms and, with the US retreating on their stance of Roe v Wade, it could signal to the rest of the world that abortion rights are not a part of human rights. Because of the influence the US has on the global political sphere and with how much foreign aid they send for developmental causes across the globe, backlash against women’s human rights and/or access to abortion healthcare may rise in less developed countries across Africa and Latin America, where governments, grapple with healthcare service provisions.

Banning abortions does not stop abortions, it only stops safe ones. In case Biden’s administration’s international development aid gets politically blocked by boldened political opponents in the Senate, the European Union, as the richest democratic region of the world, will need to step up its financial and political effort, pick up the bill and boost its political will to protect women’s access to abortion and reproductive healthcare worldwide.

What Can Biden’s Administration Do Now?

Because of the nature of the situation that reversed abortion rights in the U.S. , there is not much Biden can do in terms of restoring the constitutional right to abortion. However, ever since the draft opinion on this case was leaked to the U.S. public about two months ago, Biden and his administration have been preparing for this scenario and have explored different avenues of actions they could take. Currently, the Biden Administration is working with the FDA, the Food and Drug Administration, to protect and expand access to medications approved by the FDA such as contraception and mifepristone (a drug that safely ends early pregnancy of up to 10 weeks). The President is also directing his Department of Health and Human Services to ensure that those medications are available to their fullest extent for the American public.

Biden has also made public promises that he and his administration will defend and protect the rights for women and persons who can get pregnant to receive abortion pills in the mail, especially if they are from a state that now has banned abortions, as well as having promised to protect and defend the rights of those who decided to travel to another state that has less restrictive laws to get an abortion.

Finally, he urged Congress to pass a law that codifies the right to an abortion at the federal level. There has been some suggestions from Democratic politicians to allow abortion providers to work from federal land or to provide federal funding for women having to travel out of state to get an abortion, both options of which are not entirely plausible given other legal circumstances or ramifications that could occur. For example, the Hyde Amendment is a law within the U.S. that prohibits federal funding of abortion unless in cases of rape, incest, or when the mother’s life is at risk. It can hamper Biden’s attempt to open a federal fund to help those travelling across state lines to receive an abortion. However, President Biden just recently said that he would support with temporarily doing away with the filibuster in order to codify Roe into constitutional law. This gives slight hope for the right to abortion becoming federally solidified.

Political Impact of Supreme’ Court’s Decision on Midterm Elections

The Roe v Wade decision being released in the current political climate of the US is predicted to have a big impact on the upcoming midterm elections that will take place in early November 2022. The Supreme Court’s decision could be seen by some, particularly moderates, that the right-wing party is out of touch with public opinion, especially since, according to a Quinnipiac University poll, over 62% of Americans supported Roe (90% of Democrats, over 60% of moderates, and about 40% of republicans), which could reinforce their opinions on voting for Democrats in the upcoming election.

Biden and his administration have strongly encouraged American citizens to take into account Roe when voting in this November’s elections. Democrats hope that the release of this decision will help turn the major fights for governor and Senate seats in their favor as well as, thus, helping them hold on to some moderate, suburban voters that have helped them win in the recent past. Because at least 3 of the justices that voted on overturning Roe were appointed by Donald Trump, it could also cause those who voted for Biden in 2020 (simply because they disapproved of Trump) to vote for a Democrat yet again in hopes of mitigating Trump’s political effects in the coming years.

In several states with mixed or split political representation, especially in Michigan, Wisconsin, and Pennsylvania, the Supreme Court’s overturn of Roe vs. Wade will have a major impact on the outcome of their midterms. For example, there is a gubernatorial election this November in Pennsylvania. The state is currently being controlled by a democratic governor, but a republican-controlled legislature and so keeping the current democratic Attorney General in office would help keep abortion legal in the state as he has promised to block any anti- choice bills that may come across his desk. Yet, the electoral outcome is highly uncertain.

However, releasing this decision on Roe v Wade now could prove to be a clever move for Republicans as it was released amongst a plethora of other national issues that have seemed to take precedent over abortion or other social issues in general. These issues include national gas prices and inflation, for example, and economic issues are largely more of a deciding factor in voting skews. All of this is meant to say that, with abortion laws and decisions being referred back to individual states and their respective governments, this issue on abortion may be more likely to affect state elections in midterms, rather than federal midterm elections, but there still could be an impact that is uncertain, at the moment. It depends on how Democrats choose to spend these last few months of campaigning before the elections. It is strongly predicted that this decision to overturn Roe v Wade will enhance voter turnout for these upcoming elections.

Examples of bans on abortions across different states:

Wisconsin: Wisconsin has had an abortion ban in place for 173 years, but it was made unenforceable by the presence of Roe versus Wade. Their law that is now taking place again, written in 1849, makes an abortion procedure illegal, unless it is deemed medically necessary to save the mother’s life, and designates providing an abortion as a felony punishable by a maximum of six years in prison and a maximum fine of $10,000 USD. It does not contain any exception in cases of rape or incest. For more information: https://www.wpr.org/no-wisconsin-clinics-are-providing-abortions-friday-after-scotus-struck-down-roe-v-wade

South Dakota: Abortion is entirely illegal in South Dakota, with an exception made if there is “appropriate and reasonable medical judgement that performance of abortion is necessary to preserve the life of the pregnant female.” Anyone who does end up administering an abortion (medicine, drug, pill, surgical procedure, etc) outside of that exception is guilty of a Class 6 felony with a punishment of up to two years in prison and/ or a maximum fine of $4,000 USD. There are no exceptions for rape or incest. For more information: https://eu.argusleader.com/story/news/2022/06/24/roe-v-wade-overturned-what-means-south-dakota-abortion-illegal-trigger-law-supreme-court/7632429001/

Oklahoma: Abortions are entirely illegal in the state of Oklahoma with the exception of if the mother’s life is in danger. Anyone administering an abortion outside this exception can be criminally charged and punished with anywhere from two to 5 years in prison. A new law that is set to go into place on 26 August in Oklahoma increases potential punishments of administering an abortion to a maximum of 10 years in prison and a maximum fine of $100,000 USD. The state has also revoked licenses for all abortion clinics within their territory. There is no exception for rape or incest. For more information: https://eu.oklahoman.com/story/news/2022/06/24/roe-v-wade-scotus-means-oklahoma-abortion-trigger-law/7623055001/

Missouri: Abortions are illegal in Missouri with the only exception being if the life or health of the patient is in danger. There are no exceptions for rape or incest. Anyone who administers an abortion outside of that exception can be prosecuted for a class B felony which carries a punishment of five to 15 years in prison and can have their medical license suspended or revoked. For more information: https://missouriindependent.com/2022/06/24/abortion-is-now-illegal-in-missouri-in-wake-of-u-s-supreme-court-ruling/

Arkansas: Abortions are entirely illegal in Arkansas with the only exception being to save the life of the pregnant woman. There is no exception for rape or incest. The Attorney General of Arkansas has voiced support for adding in rape and incest exceptions, but the current law in place does not include those. Anyone who administers or attempts to administer an abortion outside of the stated exception will be charged with an unclassified felony and can be punished via imprisonment for up to 10 years and/ or a maximum fine of $100,000 USD. For more information: https://www.ualrpublicradio.org/local-regional-news/2022-06-24/attorney-general-rutledge-certifies-trigger-laws-allowing-enforcement-of-abortion-bans

Alabama: As of right now, abortion is illegal in Alabama past the 20th week of gestation with the only exceptions being if a doctor can certify that the fetus is unviable or if completion of the pregnancy would be deadly or severely and irreversibly damaging to the woman. However, in 2019, Alabama signed a bill into law that banned all abortions throughout all of pregnancy unless the mother’s life is threatened or if there is a lethal fetal anomaly. It was blocked by a federal judge in 2019 because Roe was still in place, but state officials currently say that they plan on moving quickly to challenge that ruling again. State lawmakers have also added an amendment to the state constitution that recognizes that the unborn have rights. Anyone who performs an abortion in Alabama could face up to 99 years in prison. For more information: https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-alabama

Kentucky: Abortion is now illegal in Kentucky with the only exception being if the mother’s life is endangered. There is no exception for rape or incest. Anyone who administers an abortion in Kentucky is guilty of a Class D felony which is punishable with up to five years in prison. For more information: https://www.citybeat.com/news/trigger-law-effectively-bans-abortion-in-kentucky-after-roe-v-wade-reversal-13388142

Idaho: Abortion will be illegal in Idaho after 30 days of Roe’s overturning (late August) and makes abortion a felony with the only exceptions being for rape, incest, or to save the pregnant person’s life. In order to qualify for the rape or incest exception, the person would have to provide a copy of the police report to their physician who would be performing the abortion which could take weeks to retrieve. For more information: https://idahocapitalsun.com/2022/06/24/idahos-trigger-law-will-abolish-abortions-30-days-after-scotus-ruling-overturning-roe-v-wade/

Wyoming: Abortion is illegal in Wyoming with exceptions only in the cases of rape, incest, and risk of death or “substantial and irreversible physical impairments” to the pregnant person. This will go into effect five days after the governor certifies the law to the secretary of state in Wyoming. The bill making this illegal gives the attorney general 30 days to report it to the Governor so abortion could be legal in Wyoming up until early August at maximum. Anyone who performs an abortion in Wyoming could face up to 14 years in prison. For more information: https://wyofile.com/supreme-court-ruling-to-trigger-wyoming-abortion-ban/

North Dakota: North Dakota has had a trigger law in place since 2007 in the case that Roe was overturned. This law will take place 30 days after the Attorney General certifies it and it makes all abortions illegal with exceptions for cases of rape, incest, or danger to the life of the pregnant person. It also makes performing an abortion outside of those exceptions a Class C felony and all abortion providers must have admitting privileges to a hospital in their area. For more information: https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-north-dakota

Texas: Texas has had extremely strict abortion regulations since last year where they passed a law making it legal for a private citizen to sue another private citizen who received, aided, abetted, or performed an abortion and makes it illegal to get an abortion after six weeks of pregnancy. With the overturning of Roe, Texas’ trigger law prohibits abortion from the moment of fertilization, with only exceptions for the rare cases of saving the life of the pregnant person or to prevent “substantial impairment of major bodily function.” There are no exceptions for rape or incest cases. For anyone who knowingly performs, attempts, or induces an abortion, they are guilty of a second-degree felony and the penalty increases to first-degree if the “unborn child” dies becuase of the offense. There is a fine of at least $100,000 USD for each offense and could also include life in prison for performing an abortion. This law will take place 30 days after the overturning of Roe. For more information: https://www.houstonpublicmedia.org/articles/news/texas/2022/06/24/427684/texas-trigger-law-to-ban-abortion-will-soon-go-into-effect-heres-how-it-works/

Mississippi: Mississippi’s trigger law for abortion will go into effect 10 days after 27 June 2022 (7 July 2022) and bans all abortion with exceptions for the mother’s life being at risk or rape, it is has been reported to the police. Anyone who violates this law could face up to 10 years in prison. Mississippi has the US’ highest infant mortality rate, lowest life expectancy rate, and highest fetal mortality rate. They do not offer guaranteed paid leave for new parents. For more information: https://www.mississippifreepress.org/25153/mississippi-ag-certifies-trigger-law-criminalizing-most-abortions-by-july-7

Tennessee: Tennessee’s trigger abortion law makes abortions entirely illegal within that state with the only exception being if the pregnancy puts the mother’s health in danger. There are no exceptions for rape, incest, or mental health threats such as self harm. This law will take effect within the next 30 days and heavily focuses on who administers the abortions. Anyone who administers the abortions can be convicted of a Class C felony with a punishment of three to 15 years in jail. The law does not criminalize women who have the abortions, but they could be charged with solicitation or conspiracy for seeking out an abortion. In addition, the law also allows the father of a child to sue the doctor or mother for performing the procedure and getting an abortion. For more information: https://www.newschannel5.com/news/prosecution-of-doctors-imminent-under-new-tennessee-abortion-law-legal-experts-say

Utah: Utah has a trigger law in place for abortion that, upon the overturning of Roe, would outlaw all abortions with only the exceptions being made for cases of rape, incest, if the fetus has a defect that is “uniformly diagnosable and uniformly lethal” as judged and agreed upon by two physicians that practice maternal fetal medicine, or if the mother’s life is in danger. Anyone violating this law can face anywhere from one to 15 years in prison, a maximum fine of $10,000 USD, or both. However, on 27 June 2022, a Utah judge granted a 14-day emergency and temporary restraining order on the state’s trigger ban allowing abortion to immediately resume for the next two weeks. If not extended, the abortion trigger law will be put into place on or around 11 July 2022. For more information: https://www.sltrib.com/news/2022/06/24/supreme-court-clears-way/

Louisiana: Louisiana’s trigger law for abortion included making it entirely ilelgal with the only exception being if the pregnancy puts the pregnant person’s life at risk or puts them at risk of permanent injury. There are no exceptions for cases of rape or incest. Those who perform illegal abortions could face up to 10 years in prison and a $100,000 USD fine. Similarly to Utah, a district court in Louisiana blocked the immediate implementation of the trigger law and scheduled a hearing on it for 8 July 2022. For now, abortions can continue. For more information: https://lailluminator.com/2022/06/24/louisianas-trigger-law-to-restrict-abortion-goes-into-effect-with-supreme-court-ruling/

West Virginia: West Virginia has had a trigger law in place that dates back more than a century, but went unenforced for decades due to the presence of Roe’s legality. All abortions are made illegal in West Virginia with the exception of if it is done in good faith to save the life of the pregnant person. There is no exception for rape or incest. As of 27 June 2022, abortions could be performed at 20 or more weeks postfertilization, but only if aligned with the exceptions mentioned. Anyone who violates this law is guilty of a felony and, once convicted, will be placed in prison anywhere from three to 10 years and, if the pregnant person died during the abortion procedure, that who administered the procedure would be convicted of murder. West Virginia voters have also approved an amendment to their state constitution that would state “nothing in this constitution secures or protects a right to abortion or requires the funding of abortion.” For more information: https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-west-virginia

Other interesting facts:

No one can force you to donate blood, bone marrow, organs, etc. even though thousands of people die from not receiving that care every year. No one can be persuaded to do any of that and medical professionals cannot even harvest your organs after your death without your written, pre-mortem consent to do so. We have bodily autonomy then, but not when it comes to making our own decisions on abortions.

You cannot claim an unborn child on your tax returns because they are legally not a person yet, according to the government, but you also cannot get an abortion in half the states in the US because it is considered taking an unborn child’s life.
A mother cannot apply for child support until after the baby is born and US law does not recognize the father as a legal parent or guardian during pregnancy; they only recognize such after birth. To the men who impregnated a woman, the unborn baby is not legally a person, but it is argued to be legally a person when the mother wants an abortion.

 

 

Cover photo: Adam Faden/flickr

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