The decision is not official yet but according to an unprecedented leak of the Supreme Court of the United States, the 1973 decision on the Roe v. Wade judicial case that gave the right to women in America to have an abortion is about to be overturned. The overturn of the decision on this landmark case does not mean women will lose the right to have an abortion everywhere; it instead means that the Federal States will be free to set their abortion laws. However, it is estimated that half the women of reproductive-age live in US states that will further restrict or outright ban abortions if the Roe v. Wade decision is overturned.
Before we dive into the consequences of what the end of the Roe v. Wade decision will mean for the United States, let us quickly look at the history of abortion in America and explain what exactly was the Roe v. Wade decision.
History of abortion in the United States
For much of American history, states did not regulate abortion before something called “fetal quickening”, the point in the pregnancy where the movement of the fetus can be detected in the womb. Well into the 19th century, abortions were widely practiced in the United States. Before the American Civil later in the second half of the 19th century, nearly 100% of women’s reproductive healthcare was done by women (midwives). This meant popular ethics regarding abortion and common law was grounded in the female experience of their own bodies.
The creation of the American Medical Association (AMA) in 1847 started the push to outlaw abortion. The AMA argued that abortion was immoral and that “quickening” was irrelevant because, after fertilization, a new human life would take place if no one interrupted its development. Many also argued that abortions lead to a declining birthrate of white protestant women, meaning it had to be outlawed to prevent the “browning” of America. The AMA was eventually successful, and by 1880, every US state had introduced criminal abortion laws.
Despite the criminalization of abortion, women continued to have them. It is estimated that there were up to 1.2 million abortions each year after 1880. Practitioners did their work behind closed doors or in private homes. The procedure became unsafe, and it was responsible for one-fifth of all recorded maternal deaths in 1930.
Attitudes towards abortion began to shift in the 1960s as people started to push for the liberalization of reproductive laws. In 1970, Hawaii, New York, Alaska, and Washington State were the first states to legalize abortion. However, the biggest shock came in January 1973 when the Supreme Court announced its landmark decision in Roe v. Wade, in which it decided that the restrictive states’ regulations on abortion were unconstitutional.
Roe v. Wade explained
The Roe v. Wade Supreme Court case started when a young Texan woman named “Jane Roe” (her real name was Norma McCorvey) wanted to have an abortion in 1969. At the time, abortion was illegal in Texas except to save the woman’s life. Since Jane Roe was not a risk, she tried unsuccessfully to get an illegal abortion and was approached by two attorneys that wanted to challenge anti-abortion laws. On the other side was the district attorney of Dallas, Henry Wade, who enforced the Texas abortion law and was later sued by Roe. The case eventually went all the way up to the Supreme Court, and on January the 22nd of 1973, the court struck down the Texas’ law. The court ruled that a woman’s right to privacy in the 14th amendment superseded a state’s right to ban abortion. Abortion was now legal everywhere in the United States.
What happened after 1973?
In 1973, the majority of the population supported the legalization of abortion; however, the Supreme Court Decision fueled a movement against abortion within the more religious and conservative electorate. While initially anti-abortion Americans were evenly divided between the two main parties, the Democrats and the Republicans, over the years, the Republican party adopted the overturning of the Roe v. Wade decision as one of its biggest political platforms. Their plan was simple, the party had to nominate enough conservative judges to the Supreme Court until there was a majority to overturn the 1973’s decision. Although it was simple, the plan was not easy to accomplish; Judges on the Supreme Court serve for life, and replacements have to be nominated by the President and approved by the Senate. However, between 2016 and 2020, the Republicans managed to nominate three conservative judges to the Supreme Court (out of a total of nine), which added to the three conservative judges already on the court. Although it is not yet officially known, it is expected that at least five of these six conservative judges have decided to overturn Roe v. Wade on their decision in the current case on abortion “Dobbs v Jackson Women’s Health Organization”.
The consequences of overruling Roe v. Wade
If the rumors are true and the Supreme Court decision is indeed overruled, it is expected that over half the states will prohibit all or virtually all abortions. Twelve states have “trigger laws” that have been designed to automatically ban abortion in the event Roe v. Wade is overruled. The likelihood of Congress passing federal laws to protect abortion access is very low since it would the support of ten Republican Senators to pass. Wealthier women will be able to travel to states where abortion is legal but poor women and teenagers will likely face the choice between an unsafe abortion or an unwanted child. The New York Times estimates that 34 million women of reproductive age live in states at risk of losing access to abortion.
It is impossible to predict the social and political consequences the overruling of the 1973 landmark decision will have on America. According to recent polls, a large majority of the US population does not support overturning Roe v. Wade, and with the midterms around the corner, the Republican party is expected to face some backlash from voters for its role in ending the nationwide right of abortion. However, it is unlikely that the backlash will be large enough for Democrats to gain ten Senate seats from the Republicans needed to establish a Federal law on abortion. So if Roe v. Wade is indeed overruled, the landscape of abortion rights in America will change for decades to come.
Sources: PBS Newshour, New York Times, Times, Fortune, Washington Post, Healthline, CNN, The Guardian, The New Yorker
Maria Mendes Silva
João Sande e Castro