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Goodbye, Roe vs Wade?

The US Supreme Court seems set to overturn the landmark case that established the right to abortion.

By Emily Tamkin

[Update: On 2 May, Politico published a leaked draft opinion showing that the Supreme Court had voted to overturn Roe vs Wade. The draft, reportedly written by Justice Samuel Alito, is “a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights”. While the opinion isn’t final and justices can and do change their opinions as drafts are revised, the leaked opinion suggests that the end of Roe vs Wade is near. This report follows months of fears that a majority of justices on the Supreme Court were intent on overturning the case.]

In early December, the US Supreme Court heard oral arguments in the case of Dobbs v Jackson Women’s Health Organization. Depending on the outcome, this case — a challenge to Mississippi’s ban on abortions after 15 weeks of pregnancy — could overturn Roe vs Wade, the case from almost five decades ago that protects the right to abortion. 

Here is how it went: Justice Amy Coney Barrett, put onto the court by then-president Donald Trump with days to go before the 2020 election, said more than once that because it is legal in all 50 states for a person to give their child up for adoption after birth, under what are known as safe haven laws, those laws “take care of that problem”. That, in other words, there is no need for abortion, because people can just turn to adoption.

Never mind the health risks and financial costs of pregnancy. Never mind that the very fact of being pregnant alters a person’s life. Never mind that someone who does not want to be pregnant certainly does not want to be pregnant for nine months and then give birth. In Barrett’s argument, adoption solves the problem. The second most recently appointed justice, Brett Kavanaugh, who was confirmed despite an allegation of sexual assault, said “you have to pick” between the interest of the foetus and that of the pregnant woman. Kavanaugh, ahead of his confirmation, told Republican Senator Susan Collins, who purports to care about the right to choose, that he believed Roe to be settled law; she then voted to confirm him to a lifetime appointment on the bench. 

[See also: Women facing the anguish of late-stage abortion don’t deserve to be criminalised]

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There are currently six conservative and three liberal justices on the court. One of those conservatives — Chief Justice John Roberts — seemed to be trying to find a compromise position: according to Roe, states can’t outlaw abortions before the foetus is viable, which Roe put at 24 weeks. During oral arguments, Roberts seemed to suggest that that line could be moved back to 15 weeks, which would leave the Mississippi law intact without completely doing away with Roe. But the other conservatives did not appear to find this compelling. 

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Justice Sonia Sotomayor, one of the liberals, raised other questions. Wasn’t this a religious argument? When did the woman’s concerns come into play? And what would this decision do to the legitimacy of the court? We do not expect those to be the questions with satisfactory answers when the majority opinion comes out next year. 

If you believe, as I do, in the right to have an abortion, there are many people with whom you may feel angry. This has, after all, been a long time coming, and the warning signs were flashing red for years. 

Maybe you feel angry with Justice Ruth Bader Ginsburg, who didn’t retire during Barack Obama’s presidency and passed away with mere weeks to go before the 2020 presidential election, and whose seat was filled by Barrett. Or with Justice Stephen Breyer, who is 83 years old and knows full well that Democrats may lose the Senate in 2022, but has nevertheless not announced his decision to step down and make sure that President Joe Biden gets to pick his replacement.

Maybe you feel angry with Mitch McConnell, who, as senate majority leader, refused to let Obama fill a seat left vacant by the death of Antonin Scalia with nine months to go before the 2016 presidential election and then rushed Barrett through with days before the 2020 vote, or with the Republican senators who went along with that decision. Maybe you’re mad at Susan Collins. Maybe you feel angry with the state legislatures that passed these laws in the first place. There is no shortage of people with whom to be angry. There is no shortage of anger. 

But there is also what happens next. While the future is not written in stone, it seems exceedingly likely that Roe vs Wade will be struck down next June or July in at least a 5-4 vote. When that happens, abortion could be banned in 26 states. Those with access will continue to be able to have abortions, and poor people, who are disproportionately not white, will find doing so more difficult, if not impossible.

In the meantime, abortion funds will work to help people gain access to abortion where possible. In the wake of the oral arguments, activists and many others on social media shared information about abortion pills, though Texas has already taken steps to outlaw those, too. 

There is also a bill that has already passed the House of Representatives that would protect the right to an abortion. But to get it through the Senate, it would require either the abolition of the filibuster (or 60 votes). It would, in other words, show a level of political will that Democrats have not yet been able to muster in support of the right to abortion access. 

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