Susan Pashkoff looks at the threat to overturn Roe vs Wade.
The leak of the draft majority decision written by Justice Samuel Alito confirmed the right-wing of the Supreme Court of the United States (SCOTUS) will overturn the landmark decisions of Roe vs Wade (1973) legalising abortion in the US and Planned Parenthood vs Casey (1992) reaffirming Roe but changing rules for analysing restriction on abortion rights.
Chief Justice Roberts supported allowing the Mississippi law to stand, limiting abortion access to 15 weeks (vitiating Roe, but not overturning it). The majority of the right-wing of the SCOTUS supported overturning Roe. The leak of the SCOTUS majority decision is rare and against normal rules of practice; but it will not change the decision.
It was clear that SCOTUS were going to overturn Roe; evident in the transcripts of the oral arguments (December 2021) of Dobbs vs Women’s Health Organization challenging the Mississippi law limiting legal abortion to 15 weeks. What was not known is how they were going to overturn Roe.
The decision to overturn Roe on an Originalist Interpretation of the Constitution; ie. “abortion” cannot be found in the US Constitution. Alito claims that this decision “only affects abortion”. However, there are other SCOTUS landmark decisions derived from the notion of the “right to privacy” (14th Amendment to the Constitution: Due Process/Equal Justice clauses). The landmark decision Griswold vs Connecticut (1965) maintaining the US government has no compelling interest due to an “implied right of privacy” regulating married couples access to contraceptives. Other decisions derived from Griswold include non-married couples and women over 16 accessing contraceptives, the right to Gay Sex and Gay Marriage. These decisions are all endangered by the overturn of Roe vs Wade.
The US Congress could pass the Women’s Health Protection Act codifying abortion into Federal Law, but that will not happen currently with the current composition of the Senate. As a new bill, WHPA is subject to the Filibuster in the US Senate. A residual of Jim Crow Legislation, the Filibuster means that 60 votes are needed to pass new legislation. While Republican Senators Collins and Murkowski claim to support Roe, they oppose eliminating the Filibuster. A national abortion law cannot pass unless the Filibuster is overturned and/or enough pro-choice Senators win election.
Roe’s overturn (June/July) returns abortion rights to the states; 26 states will ban abortion outright. The fight to secure legal, safe and free abortions will require a massive political and electoral struggle at state and national levels. Protests in solidarity with US women will happen regularly organised by Abortion Rights UK. The National Network of Abortion Funds (Abortion Support Network is a member) is raising money to ensure that women can access abortion throughout the US.
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