Roe v. Wade Overturned: a Backward Step for Human Rights

Image by Aston Brown. 

Ten years ago, it was only natural to assume that the world would move in a linear fashion. That as time goes on, so would society. Ten years ago, we all believed that the future would ensure progression in protecting human rights. But on June 24 2022, the U.S moved backwards as the decision of Dobbs v Jackson Women’s Health Organisation was handed down. The result? The abolition of the American constitutional right to abortion that was set out in Roe v. Wade.

ABOUT ROE V. WADE

The case of Roe v. Wade was a 1973 class action case brought by Jane Roe on behalf of herself and others to challenge Texas abortion laws. The basis of the case centred on the argument that Texas’s laws which criminalised abortion were unconstitutional as they intervened in a woman’s right to privacy, protected under the 14th Amendment. At the time of the trial, abortion was only permitted in instances where the pregnancy presented a serious risk to the mother’s life, thereby setting a high threshold for termination which failed to give women any substantial reproductive decisions. However,

in a landmark decision handed down by a 7-2 majority, the Supreme Court found that the right to abortion fell within a person’s right to privacy under the 14th Amendment. Specifically, it found that excess government control of a person’s body was unconstitutional and unjust. It is important to note that the case did not legalise abortion but rather significantly altered the way states could regulate abortion. As a result, women were given a right to an abortion within the first trimester of pregnancy which could not be interfered with by state regulation.

WHAT IS PRECEDENT?

Before we discuss the disheartening result of Dobbs v Jackson Women’s Health Organisation, you may question how such an important decision can be removed? The answer rests in the concept of ‘precedent’. Roe v. Wade is considered constitutional precedent, which means that judges in lower courts are bound to follow its decision. However, the caveat is that superior courts, or courts at the same level on the hierarchy, can make rulings that overturn constitutional precedent. This means that the decision of Roe v. Wade, which was handed down in the Supreme Court, could be overturned by another decision in the Supreme Court. 

For the right to an abortion to become an absolute right — that is, safe from future Court decisions —it would need to be codified into federal law, which has not yet been passed successfully. Consequently, the future of the Roe v. Wade precedent and the right to abortion rested in the hands of a conservative Supreme Court operating in an increasing polarised political environment.

DOBBS V. JACKSON WOMEN’S HEALTH ORGANISATION

Fast forward 49 years, and the Supreme Court heard the case of Dobbs v. Jackson Women’s Health Organisation. The case was a challenge to a ban introduced by Mississippi that made abortion illegal after 15 weeks of pregnancy. Although lower courts upheld that the ban was unconstitutional and violated the precedent in Roe, the state of Mississippi appealed the decision to the Supreme Court. Upon hearing the case, the Court upheld Mississippi’s ban and by doing so, destroyed the protections afforded to women under Roe v. Wade by removing the constitutional right to abortion. More importantly, the Court gave no regard to instances of r*pe and incest
which could result in unwanted, harmful pregnancies. The case of Dobbs marks the first time in US history the Supreme Court has ever ruled to remove a person’s fundamental right.

WHAT DOES THIS MEAN?

To put it simply, it means that in 2022, American women have fewer rights than their mothers did in 1973. As a result of Dobbs and the abolition of the right to abortion, individual states have been given back the power to regulate abortion. States such as Arkansas and Oklahoma had previously legislated “trigger bans”, which meant abortion would become illegal as soon as Roe v. Wade was overturned. It is expected that at least 20 more conservative states including South Dakota, Utah, Mississippi, and Alabama will also immediately exercise their power to criminalise abortion. As such, women who are unable to access abortion services are forced to choose between travelling unreasonable distances or bringing their pregnancy to term. Furthermore, any ban on termination will disproportionately affect low socio-economic communities that cannot afford the cost of travel needed to access abortion services. In Arkansas, the trigger ban creates a maximum sentence of 10 years in prison for illegal abortions with no exception for r*pe or incest. To put this into perspective, Arkansas considers incest a Class C felony with a maximum sentence of 10 years.

Let me repeat: a woman impregnated as a result of incest that attempts to access abortion services will be subject to the same penalties as her perpetrator.

However, perhaps the most frightening outcome of this case is the standard it sets for future decisions on human rights. The ruling of Dobbs has paved the way for unprecedented legislation that removes fundamental rights and may very well encourage the introduction of future bills that attempt to regulate access to birth control, gender, and marriage equality.

HOW DOES THIS AFFECT US?

So what does the overturning of Roe v. Wade mean for Australia’s abortion laws? Although it has no direct legal effect on our abortion laws, it has increased scrutiny over the lack of a national framework regulating access to abortion. In Australia, there is no constitutional right to an abortion, leaving it to individual states and territories to rule on the matter. Although all jurisdictions have legislated to make abortion legal, each state and territory imposes different restrictions on the circumstances which permit abortion.

In NSW, the right to access abortion services comes from the Abortion Law Reform Act 2019. This Act decriminalises medical and surgical abortion in the first 22 weeks of pregnancy and requires the consent of two medical practitioners for abortions performed after 22 weeks. Furthermore, section 12 of the Abortion Law Reform Act 2019 provides that a woman is not held to have committed an offence if she performs a termination on herself, thereby permitting the use of self-induced abortion pills. However, it is important to recognise that al though abortion is legal, it took Australia till 2021 to fully decriminalise abortion. With SA being the last jurisdiction to decriminalise abortion under the Termination of Pregnancy Act 2021, it raises the question of whether Australia is really as progressive as everyone believes.

However, despite room for improvement, it is clear that women in Australia are substantially more protected than their US counterparts, given Australia’s abortion laws are based on legislation rather than constitutional precedent. For abortion to become a criminal act in Australia, it cannot simply be overturned as was done in Dobbs v Jackson Women’s Health Organisation. Instead, it would require new laws to be passed through the House of Parliament of each State, which is substantially harder to achieve. Furthermore, the decriminalisation of abortion, and more specifically self-induced abortion in NSW, recognises the systemic barriers that women face in accessing costly abortion services. Australia’s laws ensure that marginalised groups that cannot access surgical abortion services can obtain alternative termination routes without the fear of persecution.

Clearly, Australia’s laws represent the rights and freedoms that women have been fighting for. When we compare this to the laws working against our female counterparts in the US, the injustice becomes clear. In a judicial system where the protection of human rights is erratic and unstable, we may wonder where they will draw the line. If the US courts are so willing to strip fundamental human rights and replace them with barbaric provisions, what’s next?