Roe v Wade – Gone, But …

How Much Better Off are Women in England and Wales?

Opinion by The Hon Dr Jocelynne Scutt,
Barrister at English Bar,
Member of Commission on Democracy

RBG ON ROE V WADE

The former US Supreme Court Justice Ruth Bader Ginsberg (appointed to the Court in 1993) once criticised Roe v Wade, saying the right to abortion should be founded firmly and unequivocally in the principle of equality and women’s rights to personhood, rather than in the more ambiguous privacy principle. Her criticism has been taken up with immense duplicity in the majority judgment overturning the almost fifty-year precedent set by that landmark decision.

Roe v Wade set out a ‘trimester’ system, dividing the nine-month pregnancy term into three stages, each stage regulated by the development of the foetus. For the first trimester (up to viability of the foetus) – the decision lay principally with the pregnant woman. During the second trimester, state regulation was allowed as legitimate where introduced to preserve a woman’s well-being, to comply with medical standards, and to protect potential human life. For the third trimester, the state was entitled to legislate against abortion, making it illegal unless its purpose was to preserve a woman’s health. Ruth Bader Ginsberg considered that this prescriptive legislative direction by the Supreme Court had generated and underpinned the orchestrated attacks on Roe v Wade from the outset.

ROE V WADE DOOMED

Yet whatever Justice Blackmun (who wrote the principal Roe v Wade judgment, with Stewart, Douglas and Burger concurring, White and Rehnquist dissenting) had said in that 1973 judgment, nothing would have saved women’s right to abortion under the current US Supreme Court line-up.

On 24 June 2022, in Dobbs v Jackson Women’s Health Organization Alito’s majority judgment (in which Thomas, Gorsuch, Kavanaugh and Barrett joined, with Thomas, Kavanagh and Roberts writing concurring judgments), overturned Roe v Wade, leaving the lawfulness or otherwise of abortion up to the states. That is, each state can now decide its own standards for determining this operation lawful or unlawful, the woman undergoing it, the practitioner doing it, or the medical supplier of abortifacients law-abiding or criminal.

THE MINORITY – (NO) JUSTICE FOR WOMEN

Breyer, Sotomayor and Kagan began their strong dissent by acknowledging that for some fifty years Roe v Wade and Planned Parenthood v Casey ‘protected the liberty and equality of women’, Roe holding, Casey reaffirming, ‘that the Constitution safeguards a woman’s right to decide for herself whether to bear a child’. Further:

Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be … Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions …

Balancing the state’s legitimate interests in health and life, and a woman’s rightful interest in her own destiny, meant that Roe and Casey addressed differing community views on abortion. In discarding that balance, they said, the majority in Dobbs v Jackson now assert that ‘from the very moment of fertilization, a woman has no rights to speak of’. States can:

  • force a woman to bring a pregnancy to term, whatever the cost;
  • restrict pregnancy termination ‘wherever rational’.

ABORTION – BANNED … BANNING ‘RATIONAL’

That the majority deemed protecting foetal life is ‘rational’ leaves states free to limit abortion however they choose. In Dobbs, the Mississippi law in question bars abortion after the fifteenth week of pregnancy. The Dobbs decision means a state could ‘do so after ten weeks, or five or three or one—or, again, from the moment of fertilization’. The minority judgment observed that states have ‘already passed such laws, in anticipation of today’s ruling’.

Thirteen states ban abortion from the time of fertilization – ‘trigger laws’ – Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. Abortion is banned between six and 15 weeks of pregnancy in five of these states. There are no exceptions for rape or incest in 11 states and no exception for the pregnant woman’s health exists in six states. Eight states are predicted to enact abortion bans promptly now the Supreme Court has ruled, meaning (Carrie N Baker of Ms Magazine reports) ‘much of the South and Midwest of the United States’ will be covered, and even where life or health exceptions to bans exist, significant barriers to abortion access remain.

SUPREME COURT SUBMITS WOMEN TO 17th CENTURY RULE

The majority relied heavily upon historical sources, including a pages-long list of eighteenth and nineteenth century laws from every state outlawing pregnancy termination. They cited with approval England’s Chief Justice Hale’s Laws of the Crown – ready for publication 1680, first published in 1736, and Blackstone’s Commentaries, appearing (again England) over the years 1765-1769.  This is put forward to confirm that the US Constitution does not include the right to abortion, which Roe v Wade saw as inherent in the 14th Amendment (added to the Constitution in 1868) as a right to privacy and due process. Hale’s misogyny is ignored. Sitting on the last witch trial in England, he said witches were real because their conviction in his court proved it, and the Bible said so, anyway. He accused women and girls of being innate liars, meaning warnings should be given to rape juries – concluding either rapists did not exist, or fearing rapists would be rightly convicted. ‘Rape shied statutes’ have been introduced in most common law jurisdictions, including the US, attempting to establish that lying is not a sex-linked characteristic. He said rape in marriage was no crime, a diktat accepted by law in the United Kingdom and Australia as true until the English House of Lords came to their senses in R v R in 1991 and the Australian High Court in R v L the same year.

In Dobbs v Jackson the majority deplored ‘fabrication of the Constitution’. Roberts, the Chief Justice in a separate judgment justifies his concurrence by saying Roe v Wade does not ‘need to be overruled all the way down to the studs’. Discard the right of a woman to decide for herself, by ‘discarding the viability line’, but ‘leave for another day whether to reject any right to an abortion at all’. Yet this leaves the right up to the states – knowing that many have already proposed, drafted, or passed laws violating that right by elevating a fertilised egg above a woman’s personhood.

BRING ME YOUR POOR, YOUR HUDDLED MASSES?

Roe v Wade proponents are now turning to state legislatures or Congress. Yet winning every state House is realistically doubtful – untenable, and the prospect of a Republican revived majority banning abortion altogether may be more likely than a federal law supporting a woman’s right. Even were Congress to act, the Supreme Court numbers remain. The prospect of the Senate removing the Equal Rights Amendment (ERA) time limitation and the ERA surviving the Supreme Court faces that same challenge.

So now African American and Latino women, poor women, and women otherwise disadvantaged are most likely to die or bear children despite their not being ready to do so, or having been raped at home, in a college dorm, a dark alley or on a date. And realistically, all women are at risk.

NO WOMAN SECURE, NO WOMAN SAFE

Yet is the right to women’s bodily autonomy safe or secure elsewhere? For England and Wales, abortion remains a crime despite, or rather because of, the 1967 Abortion Act. This Act, upon which women of the United Kingdom (apart from Northern Ireland) relied for some semblance of bodily autonomy denies women’s equal rights: in no other operation is a patient legally obligated to have two doctors’ approval and risk criminal prosecution if she doesn’t. Few if any women realise, in England and Wales, that obtaining an abortion means that a lengthy report of it goes from their medical practitioner to the Chief Medical Officer of England or Wales.  And how many know the irony that abortion is no longer illegal in Northern Ireland (just difficult to secure in the absence of abortion clinics or hospital facilities), though it remains subject to criminal provision in England and Wales? In 2019 the United Kingdom Parliament repealed the Offences Against the Person Act 1861 provisions criminalising abortion, so they no longer apply anywhere in the country. Yet as the Abortion Act of 1967 has never applied to Northern Ireland, section 5 of this Act – that makes abortion criminal in England and Wales unless carried out strictly according to the Abortion Act provisions – does not apply there.

The UK Prime Minister, Boris Johnson, is reported as deploring the US Supreme Court decision. ‘It’s a big step backwards,’ he says. So, will he stand up for women’s rights, introducing a Bill to decriminalise abortion for England and Wales – as has been done in jurisdictions elsewhere – making pregnancy termination an operation for a woman and her doctor, not for intrusion by the state?

Banner-image:
Five National Abortion Campaign badges, United Kingdom, 1970. Science Museum, LondonAttribution 4.0 International (CC BY 4.0)

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