It’s been 49 years since the landmark Roe v. Wade decision that declared a woman’s right to terminate her pregnancy, within limits, to be consistent with the US Constitution. That era may soon come to an end.
US Chief Justice John Roberts is incensed at the ‘betrayal’, as he calls it, by whoever leaked a draft majority opinion penned by Supreme Court Justice Samuel Alito, which takes a hard line against abortion and would overturn the landmark Roe v. Wade decision less than a year shy of its 50th anniversary.
The draft is not final and may not be how the US Supreme Court ultimately rules, but it is a strong indicator of the way the court is leaning in the case of Dobbs v. Jackson Women’s Health Organisation.
In a tremendous scoop, Politico reported the leaked opinion, calling it ‘a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right.’
‘Roe was egregiously wrong from the start,’ Alito writes, and in that, he is entirely correct. The opinion is well worth reading for his reasoning. Roe was indeed a poor decision in law that usurped states’ legislative rights and constructed a detailed edifice of precedent upon a particular reading of the due process clause of the US Constitution’s 14th amendment. Widely denounced as ‘judicial activism’ at the time, it is a classic example of legislating from the bench.
Detachment is hard when it involves an issue as divisive and emotional as abortion.
My own opinion on abortion does not matter (although it will inevitably become apparent). As Alito writes, there are people who very strongly believe in their positions, either that life begins at conception and that abortion is murder, or that life begins at birth and abortion is purely a medical choice, or in some intermediate view that abortions can be tolerated under exceptional circumstances, or only until certain stages of foetal development, such as the point at which it has a heartbeat, can feel pain, or is potentially viable outside the womb.
Roe v. Wade, as modified by Planned Parenthood v. Casey, holds that the government may not place undue impediments to a woman’s choice to terminate her pregnancy for any reason, without notifying her spouse, parents or guardians, up until the foetus becomes viable, which is generally taken to be between 22 and 24 weeks of pregnancy (that is, close to the end of the second trimester).
Wrongly decided
Whether or not you agree with the particular view on abortion implied by Roe v. Wade is not the issue. The issue is whether Roe v. Wade, and later Planned Parenthood v. Casey, were correctly decided.
Here is the relevant part of the due process clause of the 14th Amendment: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
If that doesn’t appear to say anything about a right to terminate pregnancy, or a right to privacy, that’s because it doesn’t. It takes an elaborate legerdemain to tease this into a privacy right that protects the right to have an abortion, but only under specific and detailed circumstances, as Roe v. Wade does.
Notably, while by the early 1970s a number of US states had begun to liberalise their legislation on abortion, Roe v. Wade struck down the anti-abortion legislation of as many as 30 states. It overruled, therefore, the laws written by the elected representatives of the people.
New anti-abortion laws
Multiple states have recently moved to enact new legislation to severely restrict abortion rights. Texas is among the most egregious with its Heartbeat Act, which came into effect on 1 September 2021. It prohibits abortions after about six weeks of pregnancy, at which point a foetal heartbeat becomes detectable.
There is no scientific, nor medical, nor legal, nor even religious merit to draw that particular dividing line. There is no essential difference between a functioning heart and any other organ. One might just as well define the key feature that defines life to be the ability to breathe.
The Bible, for example, says: ‘And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.’
No mention of a heartbeat there. It is an arbitrary line drawn by politicians. It is also severely prejudicial to women, who in many cases won’t even know they are pregnant by six weeks.
Notably, those who are steadfastly opposed to abortion are rarely prepared to adopt children whose mothers cannot take care of them. They also routinely oppose any welfare net that might improve the quality of life of children born in unfortunate circumstances. Life before birth matters more to them than life after birth.
Worse, Texas turns its citizens into bounty-hunters, permitting anyone to sue a doctor who performed a termination, or anyone who assisted a woman in obtaining a termination, for $10 000. The governor recruited the mob to go to war against those trying to help vulnerable women in Texas.
In Oklahoma, a new law was enacted in April that makes performing or attempting to perform an abortion after six weeks’ gestation a felony punishable by a fine of $100 000 or up to 10 years in state prison, or both. There are exceptions for ‘medical emergencies’, but no exceptions for incest or rape.
If an Oklahoman good ol’ boy impregnates his 10-year-old daughter or niece, she must suck it up, carry the baby to term, and then either care for the child or arrange to have it cared for. She probably asked for it.
In both states, the law increases the risks even of wanted pregnancies for women. They make it impossible to abort a foetus that is certain to die either before or shortly after birth, forcing women to carry them to term, with all the attendant risks of pregnancy and labour, not to mention the mental trauma of carrying the living dead.
Certain prenatal conditions, like ectopic pregnancies, can cause severe medical complications, but because they are not an emergency now, termination would make a criminal of the doctor providing essential medical care. Such cases can only be dealt with once they are emergencies, instead of before they inevitably become emergencies, dramatically increasing the risk to the life of the woman.
The state of Missouri has gone way beyond its Constitutional rights by pushing a law that would prevent its residents from seeking abortions in other states. Only the federal government can regulate inter-state movement of people, so this measure will likely fail.
One feels their pain, though, because termination bans by fundamentalist states are leading to sharply rising rates of out-of-state abortions for women who can afford to escape their oppressive state governments. This sort of rebellious behaviour certainly requires violating additional Constitutional liberties.
Federal law
Overturning Roe v. Wade would make these draconian state abortion laws both enforceable, and hard to challenge in court. Yet overturning it must happen, because it is bad law.
In its place, the US would need a federal law that explicitly establishes (or prohibits, if the people’s elected representatives so decide) the right to terminate pregnancies.
This was always a decision that shouldn’t have been made by the US Supreme Court, but by legislators. Ordinarily, rights not explicitly arrogated to the federal government devolve to the states, so without a Supreme Court ruling on the constitutionality of abortion bans, women would continue to flee their states to have safe abortions elsewhere or be condemned to unsafe back street abortions in their home states.
However, that people travel across state lines to obtain abortions when their own states would disallow them does give Congress a legal excuse, in its right to regulate inter-state commerce, to enact such a law.
It has been tried, quite recently. Although passing a law requires only a simple majority in the 100-seat US Senate, actually calling a vote on a bill requires a 60% supermajority. The Senate is, at present, evenly split between Republicans and Democrats, with Democratic vice president Kamala Harris having a casting vote.
For this reason, the Women’s Health Protection Act, which was tabled in the Senate in February this year, and which would enshrine the right to terminate pregnancies in law, failed to get anywhere near a vote. It was opposed by the 50 Republicans in the Senate, plus a lone Democratic Party senator, Joe Manchin of West Virginia.
The Senate could, of course, vote to eliminate the so-called ‘filibuster’ that makes a supermajority necessary to bring a bill to a vote, but no Republican would vote for that, meaning it would require Democratic unanimity. Thanks to Manchin, and senator Kyrsten Sinema of Arizona, that is unattainable, too.
Because abortion has always been a highly partisan issue in the US, nobody has ever been able to bring abortion legislation to a vote.
That leaves legislation of abortion rights up to the individual states, and only a minority of states currently have laws that protect abortion rights, while significantly more have old or new laws that would explicitly outlaw most or all abortions as soon as Roe v. Wade falls.
The final option for the US would be for the Democratic administration to ‘pack’ the Supreme Court, by simply adding several new justices who could be counted upon to uphold Roe v. Wade. This is by far the most controversial and least elegant solution, especially since Roe v. Wade really is a bad decision in the first place.
Court packing would likely cause riots in the streets and a revolt at the polls, costing the Democrats the presidency and control of both houses of Congress at the next elections. That would give Republicans unrestricted power to reverse the changes to the Supreme Court, overturn Roe v. Wade, and perhaps even enact a federal anti-abortion law similar to the draconian measures of Texas and Oklahoma.
In the US, both the people and the politicians are too divided to establish law at the federal level that would apply countrywide.
No problem here
In South Africa, we don’t have such problems. Here, the right to terminate a pregnancy, with some restrictions, is enshrined in the Choice on Termination of Pregnancy Act of 1996.
It permits a woman of any age to have an abortion upon request, no questions asked, in the first 12 weeks of pregnancy (a week shy of the end of the first trimester). Up to 20 weeks, or halfway her pregnancy, a woman can obtain an abortion if, in the opinion of a medical practitioner, in consultation with the woman, the continued pregnancy would pose a risk of injury to the woman’s physical or mental health; or there exists a substantial risk that the foetus would suffer from a severe physical or mental abnormality; or the pregnancy resulted from rape or incest; or the continued pregnancy would significantly affect the social or economic circumstances of the woman. Beyond that, only endangerment of the woman’s life, severe malformation of the foetus, or a risk of injury to the foetus would suffice to justify a termination.
These rights are enshrined in law and are not subject to the whims of a particular bench of jurists. They are, however, subject to the whims of healthcare providers. Doctors and nurses are under no obligation to perform, or take an active part in, a termination of pregnancy.
This is actually a problem more often than one might expect, since a great many healthcare workers are religious and believe, rightly or wrongly, that their religion prohibits abortions.
The High Court has, however, upheld the Choice on Termination of Pregnancy Act. It was challenged in 1998 by the Christian Lawyers Association, which argued that abortion violates the provision in the Bill of Rights that says, ‘Everyone has the right to life.’
The government responded, and the court agreed, that the rights in the Constitution apply only to people who have been born, and not to foetuses.
And perhaps that is as it should be. Not every moral choice can be legislated, after all, and even well-crafted law is a blunt weapon that causes much collateral damage.
Unlike in the US, there is very little chance that the religious right in South Africa, or anyone else, can wrest from women their Constitutional right to make decisions concerning reproduction and obtain appropriate reproductive healthcare.
It is high time that the US follows South Africa’s example and settles this divisive matter once and for all. It would improve not only the rights and circumstances of its most vulnerable women and children, but also the temperature of its partisan political debate.
Don’t hold your breath, however.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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