(This was first published on 21 December 2021. It has been republished from The Quint's archives over US Supreme Court overturning Roe v Wade)
The Supreme Court of the United States (henceforth SCOTUS) heard oral arguments on Wednesday, 1 December, regarding a Mississippi abortion case (filed in 2018) that risks the repeal of the landmark 1973 judgement in Roe v Wade that legalised abortion all over the country, Reuters reported.
There are multiple angles to this case. On one hand, the Supreme Court has to decide whether it wants to uphold Mississippi's state law that prohibits abortions after 15 weeks.
On the other hand, it will also decide whether or to not overrule Roe v Wade due to the merits of case regarding something known as "foetal viability," an element of both the 1973 case and the current pending Mississippi abortion case, formally known as Dobbs v Jackson Women's Health Organization.
Foetal viability is a medical term that refers to a point at which a foetus can survive outside the womb and is currently agreed to be around 23 or 24 weeks. In 1973, this number was 28, but has eventually reduced due to advancements in medical technology, according to The New York Times.
Clearly, there are many things to unpack here. Before we go over them one by one, the reader should keep in the mind the central question of this whole controversy, which is, are bans on abortions before the foetal viability point unconstitutional?
Roe v Wade Overturned: How Mississippi Abortion Law in US SC Can Affect Women
1. Dobbs v Jackson (2018): The Basics
In 2018, Mississippi's legislative body, which is dominated by Republicans, passed a law that banned almost all abortions in the state if it could be determined that "the probable gestational age of the unborn human" was more than 15 weeks, AP reported.
Gestation is the period of time between conception of the child and the birth of said child.
Known as the Gestational Age Act, it was passed by both chambers of the Mississippi State Legislature and signed into law by Governor Phil Bryant.
The State of Mississippi was immediately sued, in less than an hour after the passing of the law.
The only abortion clinic in the state – Jackson Women’s Health Organization – filed a complaint in the United States District Court for Mississippi’s Southern District, and the judge blocked the law, even citing Roe v Wade.
It is important to note that Mississippi law, before the passing of the Gestational Age Act, barred abortions after 20 weeks.
But the abortion clinic never conducted abortions after 16 weeks in the first place, thereby not defying the previous law.
In his judgment, Judge Carlton W Reeves wrote that "the state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade", according to NYT.
He further added that "the law threatens immediate, irreparable harm to Mississippians’ abilities to control their ‘destiny and … body" and that "this court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature."
When the judge said that court "follows the commands" of SCOTUS, he was referring to the landmark 1973 judgment.
He also argued that the Gestational Age Act was the beginning of a "deliberate effort" by Mississippi lawmakers to get ride of Roe v Wade.
So, what are the details of the 1973 case? What precedents did it set that made it so important?
Expand2. Roe v Wade (1973): The Case
Norma McCorvey, who used the name "Jane Roe" in her lawsuit, discovered in June 1969 that she was pregnant.
She wrongly believed that Texas law allowed abortions in cases of rape, and went to an abortion clinic to falsely claim the same.
Unable to carry out her abortion, she sued the state of Texas, with the help of her lawyers Linda Coffee and Sarah Weddington.
The defendant was the Dallas County District Attorney, a man named Henry Wade.
The district court judges ruled in Roe's favour, but the case reached the SCOTUS in 1970 on appeal.
The Supreme Court, by a vote of 7 to 2, ruled in favour of Roe and in the process, mandated a constitutional right of a woman to have an abortion, thereby nullifying many laws across the US that prohibited abortions.
The court said that state governments had no constitutional backing to ban abortions before the foetal viability period, and that outlawing abortions would violate a pregnant woman's right to privacy.
Expand3. Roe v Wade (1973): The Court's Argument
The prosecution argued that abortion bans should be legal because of a foetus's right to life, since "life" begins at conception, and therefore prenatal life should be protected regardless of the stage of a woman's pregnancy.
The court disagreed, arguing that the US Constitution nowhere says that the right to life of a "person" includes foetuses, and that a foetus could not be seen as a "person" with a right to life protected by the constitution.
A woman's right to make a decision concerning her unborn baby, keeping in mind factors like her own physical and psychological health, and the finances required to bring up the child if born, must be protected.
SCOTUS did, however, create a framework on trimesters of pregnancy to govern abortion regulations.
In the first trimester, a woman could almost never be barred from conducting an abortion.
In the second trimester, some regulations could be permitted to safeguard the women’s health.
And in the third, states could ban abortions except when the life and health of the woman was at stake. This is where foetal viability came in, that is, states could ban abortions (keeping in mind the woman's health) when a foetus might survive outside the mother's womb.
Since the ruling in Roe v Wade, its principles have been upheld by the SCOTUS multiple times, but most importantly in 1992, in another landmark ruling, this time in a case titled Planned Parenthood v Casey.
The details of that case are beyond the scope of this article, but the ruling in Casey did indeed reiterate that states could not snatch away the right of a woman to conduct abortions before the foetal viability period.
The court also argued that states could not impose an undue burden on the right to abortion, that is, "an undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability", according to the transcript of the case published by Cornell Law.
Therefore, the principles that emerged out of Casey are also going to be tested in the Supreme Court during the trial of the Mississippi abortion law.
“Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding", the court had written during its remarks on Casey.
Expand4. Can Principles of Roe v Wade Be Abandoned Without an Overrule?
There is no doubt that anti-abortion activists and Republican states want a complete overrule of Roe and Casey.
In fact, research by the Guttmacher Institute, a pro-choice research organisation, has found that that 26 US states (including Mississippi) will initiate complete bans on abortion if the SCOTUS does end up overturning Roe and Casey.
Trigger laws with respect to abortion rights, that is, laws that can't be enforced at the moment, but may soon become enforceable in case of a change in circumstances (such as a SCOTUS judgment) have already been enacted by multiple states like Arkansas, Kentucky, Louisiana, and Mississippi.
These would instantly apply to everyone in the state should Roe and Casey be overturned.
But does the Supreme Court necessarily have to overturn Roe in order to de facto abolish the right of a woman to have an abortion?
Not necessarily.
The court could on one hand maintain the constitutional right of a woman to conduct an abortion but on the other hand give state legislatures all the freedom and power in the world to impose burdens on how the woman can carry out the abortion.
Obstacles could include increasing the costs of getting an abortion, or defining the circumstances that bar an abortion in a manner that makes it extremely difficult for women to do so.
That is what Texas' Senate Bill 8 essentially did, which barred abortions after six weeks of a woman's pregnancy, but arguing that it is prohibiting an abortion after cardiac activity is detected in the embryo.
Experts argued that "it is extremely possible and very common for people to get to the six-week mark and not know they are pregnant", NYT reported.
Additionally, "forcing them to find out about a pregnancy and make a decision about how to manage it in a short period of time is antithetical to ethical care," according to Dr Jennifer Villavicencio of the American College of Obstetricians and Gynaecologists.
There are, therefore, many ways using which the SCOTUS could make it very difficult for women to get an abortion without overruling Roe.
Setting up procedural fences, like allowing only the woman in question to file the lawsuit (what if the woman is uneducated) or limiting the remedies available to plaintiffs, will also almost de facto overturn Roe, Vox reported.
Expand5. What Do Legal Experts and the Public Think?
Dr Tlaleng Mofokeng, who is the UN rapporteur for the right to health, thinks that overturning Roe and the resulting trigger laws would violate international human rights law, and also the UN convention against torture (the US is a signatory).
"If that gets overturned, it has catastrophic implications, not just for the US, " he told The Guardian.
Talking about the politicisation of the Supreme Court with respect to nominations and confirmations in recent years (such as Justices Amy Coney Barrett and Brett Kavanaugh), George Frampton, a clerk for Justice Harry Blackmun, the judge who penned Roe, thinks that the 1973 case contributed to the polarisation of the SCOTUS and the risks that accompany the polarisation.
"I think they [the justices] saw it as a very important landmark constitutional decision but had no idea that it would become so politicised and so much a subject of turmoil."
Many think that "Roe v. Wade is really on the chopping block," such as Professor Robyn Powell of Stetson University College of Law.
Powell argues that the timing of the case being heard is related to the conservative majority that is currently the composition of the Supreme Court after the death of Ruth Bader Ginsburg, a champion of woman's rights.
Public opinion is pretty divided, and quite dependent on the stage of the pregnancy according to polls.
An NPR poll in 2019 found that almost four in every five US citizens supported the 1973 judgment only about 34 percent supporting a woman's decision to carry out an abortion in the second trimester.
That number jumped 47 percent in 2021, according to a Reuters poll.
An AP poll in 2021 found that more than 85 percent are supportive of an abortion if the life of the woman was at risk, but only about 50 percent are supportive of the same if it was with respect to a woman's own choice about what to do with her body.
The public is divided, and so are the politicians, lawyers, and judges.
The controversial nature of the question regarding bans on abortions before the foetal viability point unconstitutional means that this will not be the last controversy that will rage regarding the abortion issue.
(With inputs from NYT, NPR, Reuters, Washington Post, and Vox)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
Dobbs v Jackson (2018): The Basics
In 2018, Mississippi's legislative body, which is dominated by Republicans, passed a law that banned almost all abortions in the state if it could be determined that "the probable gestational age of the unborn human" was more than 15 weeks, AP reported.
Gestation is the period of time between conception of the child and the birth of said child.
Known as the Gestational Age Act, it was passed by both chambers of the Mississippi State Legislature and signed into law by Governor Phil Bryant.
The State of Mississippi was immediately sued, in less than an hour after the passing of the law.
The only abortion clinic in the state – Jackson Women’s Health Organization – filed a complaint in the United States District Court for Mississippi’s Southern District, and the judge blocked the law, even citing Roe v Wade.
It is important to note that Mississippi law, before the passing of the Gestational Age Act, barred abortions after 20 weeks.
But the abortion clinic never conducted abortions after 16 weeks in the first place, thereby not defying the previous law.
In his judgment, Judge Carlton W Reeves wrote that "the state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade", according to NYT.
He further added that "the law threatens immediate, irreparable harm to Mississippians’ abilities to control their ‘destiny and … body" and that "this court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature."
When the judge said that court "follows the commands" of SCOTUS, he was referring to the landmark 1973 judgment.
He also argued that the Gestational Age Act was the beginning of a "deliberate effort" by Mississippi lawmakers to get ride of Roe v Wade.
So, what are the details of the 1973 case? What precedents did it set that made it so important?
Roe v Wade (1973): The Case
Norma McCorvey, who used the name "Jane Roe" in her lawsuit, discovered in June 1969 that she was pregnant.
She wrongly believed that Texas law allowed abortions in cases of rape, and went to an abortion clinic to falsely claim the same.
Unable to carry out her abortion, she sued the state of Texas, with the help of her lawyers Linda Coffee and Sarah Weddington.
The defendant was the Dallas County District Attorney, a man named Henry Wade.
The district court judges ruled in Roe's favour, but the case reached the SCOTUS in 1970 on appeal.
The Supreme Court, by a vote of 7 to 2, ruled in favour of Roe and in the process, mandated a constitutional right of a woman to have an abortion, thereby nullifying many laws across the US that prohibited abortions.
The court said that state governments had no constitutional backing to ban abortions before the foetal viability period, and that outlawing abortions would violate a pregnant woman's right to privacy.
Roe v Wade (1973): The Court's Argument
The prosecution argued that abortion bans should be legal because of a foetus's right to life, since "life" begins at conception, and therefore prenatal life should be protected regardless of the stage of a woman's pregnancy.
The court disagreed, arguing that the US Constitution nowhere says that the right to life of a "person" includes foetuses, and that a foetus could not be seen as a "person" with a right to life protected by the constitution.
A woman's right to make a decision concerning her unborn baby, keeping in mind factors like her own physical and psychological health, and the finances required to bring up the child if born, must be protected.
SCOTUS did, however, create a framework on trimesters of pregnancy to govern abortion regulations.
In the first trimester, a woman could almost never be barred from conducting an abortion.
In the second trimester, some regulations could be permitted to safeguard the women’s health.
And in the third, states could ban abortions except when the life and health of the woman was at stake. This is where foetal viability came in, that is, states could ban abortions (keeping in mind the woman's health) when a foetus might survive outside the mother's womb.
Since the ruling in Roe v Wade, its principles have been upheld by the SCOTUS multiple times, but most importantly in 1992, in another landmark ruling, this time in a case titled Planned Parenthood v Casey.
The details of that case are beyond the scope of this article, but the ruling in Casey did indeed reiterate that states could not snatch away the right of a woman to conduct abortions before the foetal viability period.
The court also argued that states could not impose an undue burden on the right to abortion, that is, "an undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability", according to the transcript of the case published by Cornell Law.
Therefore, the principles that emerged out of Casey are also going to be tested in the Supreme Court during the trial of the Mississippi abortion law.
“Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding", the court had written during its remarks on Casey.
Can Principles of Roe v Wade Be Abandoned Without an Overrule?
There is no doubt that anti-abortion activists and Republican states want a complete overrule of Roe and Casey.
In fact, research by the Guttmacher Institute, a pro-choice research organisation, has found that that 26 US states (including Mississippi) will initiate complete bans on abortion if the SCOTUS does end up overturning Roe and Casey.
Trigger laws with respect to abortion rights, that is, laws that can't be enforced at the moment, but may soon become enforceable in case of a change in circumstances (such as a SCOTUS judgment) have already been enacted by multiple states like Arkansas, Kentucky, Louisiana, and Mississippi.
These would instantly apply to everyone in the state should Roe and Casey be overturned.
But does the Supreme Court necessarily have to overturn Roe in order to de facto abolish the right of a woman to have an abortion?
Not necessarily.
The court could on one hand maintain the constitutional right of a woman to conduct an abortion but on the other hand give state legislatures all the freedom and power in the world to impose burdens on how the woman can carry out the abortion.
Obstacles could include increasing the costs of getting an abortion, or defining the circumstances that bar an abortion in a manner that makes it extremely difficult for women to do so.
That is what Texas' Senate Bill 8 essentially did, which barred abortions after six weeks of a woman's pregnancy, but arguing that it is prohibiting an abortion after cardiac activity is detected in the embryo.
Experts argued that "it is extremely possible and very common for people to get to the six-week mark and not know they are pregnant", NYT reported.
Additionally, "forcing them to find out about a pregnancy and make a decision about how to manage it in a short period of time is antithetical to ethical care," according to Dr Jennifer Villavicencio of the American College of Obstetricians and Gynaecologists.
There are, therefore, many ways using which the SCOTUS could make it very difficult for women to get an abortion without overruling Roe.
Setting up procedural fences, like allowing only the woman in question to file the lawsuit (what if the woman is uneducated) or limiting the remedies available to plaintiffs, will also almost de facto overturn Roe, Vox reported.
What Do Legal Experts and the Public Think?
Dr Tlaleng Mofokeng, who is the UN rapporteur for the right to health, thinks that overturning Roe and the resulting trigger laws would violate international human rights law, and also the UN convention against torture (the US is a signatory).
"If that gets overturned, it has catastrophic implications, not just for the US, " he told The Guardian.
Talking about the politicisation of the Supreme Court with respect to nominations and confirmations in recent years (such as Justices Amy Coney Barrett and Brett Kavanaugh), George Frampton, a clerk for Justice Harry Blackmun, the judge who penned Roe, thinks that the 1973 case contributed to the polarisation of the SCOTUS and the risks that accompany the polarisation.
"I think they [the justices] saw it as a very important landmark constitutional decision but had no idea that it would become so politicised and so much a subject of turmoil."
Many think that "Roe v. Wade is really on the chopping block," such as Professor Robyn Powell of Stetson University College of Law.
Powell argues that the timing of the case being heard is related to the conservative majority that is currently the composition of the Supreme Court after the death of Ruth Bader Ginsburg, a champion of woman's rights.
Public opinion is pretty divided, and quite dependent on the stage of the pregnancy according to polls.
An NPR poll in 2019 found that almost four in every five US citizens supported the 1973 judgment only about 34 percent supporting a woman's decision to carry out an abortion in the second trimester.
That number jumped 47 percent in 2021, according to a Reuters poll.
An AP poll in 2021 found that more than 85 percent are supportive of an abortion if the life of the woman was at risk, but only about 50 percent are supportive of the same if it was with respect to a woman's own choice about what to do with her body.
The public is divided, and so are the politicians, lawyers, and judges.
The controversial nature of the question regarding bans on abortions before the foetal viability point unconstitutional means that this will not be the last controversy that will rage regarding the abortion issue.
(With inputs from NYT, NPR, Reuters, Washington Post, and Vox)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)