The future of Roe v. Wade

Roe is a Dead Woman Walking

In a year’s time abortion will be a States Rights’ issue, Roe v. Wade will be nullified, and there’s nothing anyone can do about it.

At some point in the first half of next year, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organisation, regarding the legality of a law passed in the Mississippi State Legislature in 2018 that banned abortion after 15 weeks. Under current precedent, it’s undisputed that this would be illegal – but that’s the point. President Trump appointed three justices to flip the jurisprudential ideological balance of the court from 5-4 to the ‘liberals’, to a 6-3 dominated ‘conservative’ court. Republicans seized upon this to pass a slew of draconian laws banning abortion in the hope of getting lawsuits that will move through the state and district court system, up to the Supreme Court, where the nine justices will have the opportunity to rule on the precedent set in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Ultimately, it is nearly certain that the judges will rule in favour of the Mississippi State Legislature and trigger a political firestorm that will completely change the face of American politics and be the defining issue of the 2022 midterms and the 2024 election cycle. Feminism as an ideology and a political force will face a renewal in response to this case, possibly sparking a ‘fifth wave’ of feminism, that will resemble a synthesis of the 1960s second wave women’s liberation movement and the current fourth wave of feminism. It is hard to imagine right now how large and deep an impact this will have on American politics, American culture, and Global Feminism, until we are in the thick of it.

The Case

In 1973 Roe v. Wade was decided by a 7-2 margin, leaning on the constitutional right to privacy under the 14^th amendment to rule that any state bans on abortion were illegal. The legal standard given for what restrictions could be placed on abortion were then amended in Planned Parenthood v. Casey so that no ‘undue burden’ may be placed on any woman seeking the abortion of a non-viable foetus. Key here is that the basis of the woman’s right has shifted from the non-violable right to privacy, towards something scientific and not personal – regarding the scientific consensus surrounding after what period it is likely a foetus could survive outside the womb. When the right of the woman subsided to scientific consensus, rather than stay established through the judicial standard of strict scrutiny, the federally protected right to an abortion became greatly weakened.

In May this year the Supreme Court granted review on Dobbs v. Mississippi, the case contesting the legality of the State Legislature’s ban on abortion beyond 15 weeks (with few exceptions) (Howe, 2021). This is the second abortion case the Supreme Court has agreed to rule on in three years, after hearing an attempt to restrict abortion on in Louisiana that would’ve only granted the ability to perform an abortion to a single doctor in the whole state (Glenza and Gabbatt, 2020). The law was ruled unconstitutional in a 5-4 ruling in reference to an identical law in Texas that was struck down in 2016. Crucial here is that we understood the views that newly appointed Justices Gorsuch and Kavanaugh held about Roe v. Wade – they were part of the four justices that dissented, along with Justices Alito and Thomas. Three months after the ruling of the case in June 2020, Justice Ruth Bader-Ginsburg passed away, and against her dying wishes, the vacancy she left was filled in a shotgun Supreme Court appointment by President Trump and the Republican controlled Senate. Justices try as hard as they can to keep their private political views out of the public sphere, but from the information we have, and from the pressure groups that support her, we can infer some views regarding Roe. In an article from 2013 in the Texas Law Review, she commented on what she perceived the public’s rejection to “precedent declaring a permanent victor… in a divisive constitutional issue” (BBC, 2020), referring to Roe. She clerked for the immensely influential Justice Antonin Scalia, the greatest proponent of ‘textualism’, the jurisprudential philosophy by which the conservative side of the court associates itself with, and Justice Scalia’s views regarding Roe and abortion are clear-cut and maligning.

If we extrapolate from this and from the Louisiana case, then the outcome of Dobbs v. Jackson will be in favour of the Mississippi State law by a margin of 5-4; Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney-Barrett in the majority with Chief Justice Roberts, and Justices Breyer, Sotomayor and Kagan dissenting. The decision will strike down the framework set out in Planned Parenthood v. Casey based on foetal viability and will likely strike down the federally protected right to abortion that Roe delivered, in favour of leaving it up to the States. I can’t see any way around that conclusion from where we are now. The only change possible I can see is that Roberts joins his conservative counterparts in order to show his support in what will no doubt be the defining moment of his tenure as Supreme Court Justice.

Late at night on the 31^st of August 2021, the Supreme Court voted 5-4 against (the same composition detailed in the above paragraph) hearing an appeal about Texas’ new ‘Heartbeat Bill’, so that it shall now be enforced across the second largest state in the Union. This would ban abortion in the state after 6 weeks and would offer bounties of $10,000 to people who are willing to turn in anyone who has ‘aided and abetted’ an abortion (Stuart, 2021). It’s as if Governor Abbott is using the Handmaid’s Tale as a guide.

Aftermath

Once Roe dies a ceremonial death in the first half of next year, after having been effectively killed in Texas, the majority of Republican states will have already passed their restrictive abortion laws. Over the next year, bit by bit, it will become much harder for tens of millions of women to access an abortion if they need one. Those living in more conservative states will have to cross state lines to states with more lenient laws, purchase pills online, or be forced into illegal, unsafe abortions. There is significant literature surrounding the price elasticity of demand for abortion – that when restrictions increase, fewer legal abortions are had, and unwanted pregnancies rise, and vice versa (Gohmann and Ohsfeldt, 1993). However, by its nature, there is little research done regarding the corresponding increase in illegal abortion. It would be almost impossible. What is an immensely private act when legal, becomes shrouded in another layer of secrecy when illegal to hide from the law, and in Texas, bounty-hunters. Ultimately, for those that really need one, they will get one. Except instead of it being conducted in safe, legal setting, it will be with whatever they can afford off the internet. Because this is not only an issue of sex, but also an issue of class. Rich people will still be able to afford the best treatment possible around the country, whilst poor people will not. Which illustrates the fallacy that the Texas legislature and Republicans are seemingly blind to – making something illegal, be it abortion, or drugs, does not stop it from happening, only that can’t see it happening anymore.  

Constitutionally, the only way to cement abortion as a legal right would be through an amendment to the constitution, requiring two thirds of both Houses of Congress, and thirty-eight out of fifty states to sign on. Regarding directly enshrining the legality of abortion into the constitution, that’s flat out politically impossible. However, something that could possibly be found hope in is the proposed Equal Rights Amendment. In the 1970s the Equal Rights Amendment to the Constitution was passed through the House of Representatives, the Senate, and fell just three short of gaining the necessary number of states to become codified before the deadline set by Congress. In the last 5 years, 3 more states have passed a resolution adopting the amendment, Nevada, Illinois, and Virginia, supposedly bringing the number of ratifications up to the golden thirty-eight. However, this was after the deadlines set by Congress to ratify the amendment, along with five states that supposedly rescinded their own ratifications. The legality of the ERA is up in the air but will surely be sorted out as civil liberties organisations explore every legal option possible. The wording of the ERA is simple, “Equal Rights under the law shall not be denied… by any state on account of sex” (Cohen and Codrington III, 2020) and taken in concert with the Equal Protection clause of the 14^th amendment, that ‘no person or group will be denied the protection under the law that is enjoyed by similar persons or groups’, this compelling legal argument could spearhead successful legal appeals in the future.

Can the President or Congress do anything here? In theory, yes – the number of Supreme Court justices is determined not by the constitution, but by legislation, and the number has been changed multiple times in the past, being as low as six and as high as eleven in the 19^th century. For example, Congress could increase the number of justices to eleven, and President Biden could nominate two justices with a liberal record fill the two spaces. However, this is only theory, and couldn’t happen in practice – it sets an extremely dangerous precedent that could be weaponised by whatever party is in power, and not enough Democrats would support it even if President Biden wanted to.

Ultimately, with all the legal uncertainty around the response to the curbing to abortion rights, it’s clear that the immediate political response will need to target Republican state legislatures. Activists will draw on texts written in the past few years, and sixty years ago, for the struggle for control over one’s body will be the same in a year as it was during the second wave of feminism in the 1960s. A synthesis of Me-Too feminism and Women’s liberation feminism will emerge, with abortion and womens’ rights likely to be the biggest ballot issue going into the 2022 midterms and the 2024 Presidential election. If you thought the United States was polarised now, just wait.

– Fred Alldridge

Sources:

1. Howe, A., 2021. Court to weigh in on Mississippi abortion ban intended to challenge Roe v. Wade – SCOTUSblog. [online] SCOTUSblog.com. Available at: <https://www.scotusblog.com/2021/05/court-to-weigh-in-on-mississippi-abortion-ban-intended-to-challenge-roe-v-wade/&gt; [Accessed 2 September 2021].
2. Glenza, J. and Gabbatt, A., 2020. Supreme court strikes down restrictive Louisiana abortion law. [online] theguardian.com. Available at: <https://www.theguardian.com/world/2020/jun/29/abortion-ruling-supreme-court-strikes-down-louisiana-law&gt; [Accessed 2 September 2021].
3. BBC, 2020. Amy Coney Barrett: The Supreme Court nominee on abortion, healthcare and her faith. [online] bbc.co.uk. Available at: <https://www.bbc.co.uk/news/election-us-2020-54512678&gt; [Accessed 2 September 2021].
4. Stuart, T., 2021. Doctors, Clergy Sue Over New Texas Law That Offers $10,000 Bounty on Abortions. [online] rollingstone.com. Available at: <https://www.rollingstone.com/politics/politics-news/texas-abortion-law-10000-bounty-1193591/&gt; [Accessed 2 September 2021].
5. Gohmann SF, Ohsfeldt RL. Effects of price and availability on abortion demand. Contemp Policy Issues. 1993 Oct;11(4):42-55. doi: 10.1111/j.1465-7287.1993.tb00400.x. PMID: 12346320.
6. Cohen, A. and Codrington III, W., 2020. The Equal Rights Amendment Explained. [online] Brennan Center for Justice. Available at: <https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained&gt; [Accessed 2 September 2021].