Nearly 50 years ago, the Supreme Court of the United States heard a landmark case which would have massive legal, political, social and cultural implications across America: the case of Roe v. Wade. Since the case was ruled on, it has remained controversial, stirring up passions and emotions on both sides of the divide. And now, in May 2022, there is a very real possibility that it could be overturned.
Since December, the case of Dobbs v. Jackson Women’s Health Organisation has brought the Roe v. Wade case back to the Supreme Court’s attention. The Dobbs case concerns a controversial bill passed in the state of Mississippi in 2018: the Gestational Age Act, which banned abortions in the state after 15 weeks of pregnancy, “except in medical emergency and in cases of severe fetal abnormality”. As it is, Mississippi is already one of the most restrictive states in the US when it comes to abortion, and the state is home to just one abortion clinic: The Jackson Women’s Health Organisation. The JWHO sued the state of Mississippi, including Thomas E. Dobbs, the State Health Officer of the Mississippi Department of Health from whom the case gets its name, over the constitutionality of the Act. So far, the Act has been struck down as unconstitutional by both the Southern Mississippi District Court as well as the Fifth Circuit Court of Appeals, but the State of Mississippi has taken an appeal all the way to the Supreme Court.
The Dobbs case is important not just for the parties involved, but it could also have implications for the original Roe v. Wade ruling: essentially, if the Supreme Court – currently comprised of six conservative and three liberal justices – sides with Dobbs et al, then it is likely that the previous Roe v. Wade decision would be struck down. This is because a ruling in favour of Dobbs would then contradict the Roe v. Wade decision, and so both decisions would not be able to stand simultaneously. This brings us to where we are today.
Late on Monday night, Politico leaked a draft opinion authored by Supreme Court Justice Samuel Alito, which held that the case of Roe v. Wade should be struck down. It has not been confirmed as whether this will be the final opinion, or even the majority opinion of the Court; however, it serves as a reminder of how much is at stake if the Supreme Court backs Alito’s opinion.
So what exactly was Roe v. Wade about? The case of Roe v. Wade was decided by the Supreme Court on January 22nd, 1973, and ruled that a woman’s right to choose to have an abortion was protected by the United States Constitution, namely under the ninth and fourteenth amendments. This was because a person’s right to privacy covered the choice to have an abortion, and therefore states could not put excessive restrictions the provision of abortions.
The case concerned Norma McCorvey (known as Jane Roe), a 21-year-old Texas woman with a turbulent past, who by that point had had – and lost custody of – two children; McCorvey then became pregnant a third time, and sought an abortion. However, McCorvey was denied an abortion by the state of Texas as her life was not in danger. With the help of a legal team, McCorvey sued Dallas County District Attorney Henry Wade, alleging that Texas’s restrictive abortion legislation was unconstitutional under the Ninth Amendment. Lower courts in Texas ruled in McCorvey’s favour, but Texas appealed and the case was escalated to the Supreme Court. On January 22nd, 1973, the mostly conservative Supreme Court ruled 7-2 in favour of McCorvey, ruling that a woman’s right to choose an abortion was upheld, with Republican Justice Harry Blackmun delivering the majority opinion. However, due to the extensive amount of time that elapsed while the case was in court, McCorvey was unable to access the abortion she sought; McCorvey ultimately gave birth, and the baby was put up for adoption.
So if the ruling in Roe v. Wade was overturned, would that mean that getting an abortion in the US then becomes more difficult? The answer to that question is potentially. As it is, abortion laws are currently set by individual states, so there will always be states where restrictions on abortions are tighter or more liberal than others. However, the ruling in Roe v. Wade effectively set a minimum level of access – described by Justice Blackmun as a “compelling point” during the fetus’s development – that states had to abide by: Blackmun argued that this should be “at approximately the end of the first trimester”, and that, prior to this, physicians were “free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated”. If the Supreme Court struck down its original 1973 ruling in Roe v. Wade, then this minimum level of access is removed, meaning some states will be quick to line up much more restrictive laws or even outright bans on abortion.
Supporters of the original Roe decision have long been concerned that, if the Supreme Court rules in favour of Dobbs and the state of Mississippi, and the original Roe decision is overturned, the decision would then allow states to introduce much stricter abortion laws. Indeed, some states have already been trying to do this: for example, Arizona Governor Doug Ducey signed Senate Bill 1457 into law on April 27, 2021, which bans abortions on the basis of race or sex of the baby, or in the case of non-fatal genetic disorders such as Down’s Syndrome. Meanwhile, in Texas, Senate Bill 8 (known as the Texas Heartbeat Bill) was signed into law on May 19, 2021, and bans physicians from carrying out abortions following the detection of a fetal heartbeat – usually at around six weeks – unless the mother’s life is in danger, as well as providing private parties the right to sue anyone who aids or abets the provision of an abortion outside of this timeframe. As it stands, thirteen states have already introduced “trigger laws”: laws on abortion designed to take effect in that state immediately in the event of Roe being overturned.
It is not difficult to understand why the case of Roe v. Wade would be controversial: the case is a compound of very sensitive issues, including women’s access to healthcare, the right to privacy, the right to life (and definition of life), defense of the unborn, and the disconnect and differences between lawmakers and those who are affected by the laws they make. The fact that public attitudes towards abortion vary so much from state to state is also one of the major difficulties with having a federal ruling covering it. Opposition to abortion is most concentrated in the Deep South, so a blanket rule covering a state like Mississippi and a state like New Jersey, where there are no restrictions on accessing abortions, is always going to be problematic. But where does public opinion stand on the issue? Access to abortion is still supported by a majority of Americans: a Pew Research poll from last year showed that a six in ten Americans thought abortion should be legal in most or all cases. This represents a majority of Americans in all racial, social, political and religious groups, with the exception of more conservative Republicans and white evangelical protestants. Meanwhile, a Politico/Morning Consult poll from this week showed that 50% of Americans do not believe that Roe v. Wade should be overturned. However, it is the minority groups – white evangelicals and hardline conservatives – who have largely gained control of the dialogue on abortion access, despite the levels of public support for access to abortion.
However, this leads us to our next significant question: how problematic will a Supreme Court ruling on what is essentially a culturally-based issue be? Opposition to abortion arguably is based on social or religious grounds, rather than medical grounds; was a federal ruling on the issue always going to be threatened? This position also seems to be hinted at by Blackmun himself, who argued: “[The Supreme Court] need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
The Roe v. Wade decision has always been contentious, and continues to stir up passions both in favour and opposed to the decision. And the truth is that, whatever decision the Supreme Court makes this summer, none of that will change. Samuel Alito is well-known for being one of the more conservative justices on the bench, so the fact that he would author an opinion such as this is hardly a surprise. However, whether Roe v. Wade is upheld or struck down, this particular battle within the American culture war will continue long into the future. Opponents of the 1973 decision argue that it was wrongly decided on the grounds of it superseding states’ rights, for genuine concern for the rights of the unborn, and – yes – the conservative views they may hold with regards to women’s reproductive rights. Meanwhile, defenders of the Roe decision argue that the only person who should get to make a decision on having an abortion is the woman in question, and the Supreme Court ruling was necessary to defend a woman’s right to choose, something which was not protected by individual states and which some states are already looking to roll back. Many have also expressed concern that, if Roe v. Wade was overturned, it could then leave other Supreme Court rulings such as Obergefell v. Hodges, the 2015 ruling which legalised same-sex marriage throughout the United States, under threat (although the Obgerfell ruling has not experienced the same level of post-decision opposition or cultural clapback that Roe has had).
In any case, I do not feel that there is ever going to be a ruling that the Supreme Court could make, a resolution or acceptable national compromise, with regard to Roe v. Wade that would not attract serious opposition and stir passions on both sides. To that end, one could argue that an advantage to leaving the decision-making power on abortion law to individual states is that it in theory would allow lawmaking to be done more democratically, even if there continues to be some in-state opposition to abortion access. However, the fact remains that, the 1973 ruling in the Roe v. Wade case provided a line of protection for women who may have needed to access an abortion which wasn’t there previously.
Whatever the outcome of the Dobbs is, and whatever happens to Roe v. Wade, one thing is certain: this outcome of this case will not settle the abortion issue. The last almost-fifty years have proved that the contentious nature of abortion will not simply disappear with the ruling.
 It is worth re-iterating that the Supreme Court is not making a decision over whether they think abortion should be legal or illegal (personal opinions of any justices notwithstanding). The Supreme Court’s role is to determine whether the United States Constitution permits certain laws to stand, or if a law is unconstitutional. In this case, the Supreme Court will simply be ruling on whether Mississippi’s Gestational Age Act is unconstitutional, and whether that decision then nullifies the 1973 Roe decision.