In its landmark case, Roe v. Wade, the U.S. Supreme Court determined that the U.S. Constitution largely protects a pregnant woman’s right to an abortion. The judgment invalidated several federal and state abortion regulations and sparked a debate about whether or to what degree abortion should be legalized, who should make that determination, and what place moral and religious beliefs should have in American politics. It also spurred arguments on the procedures the Supreme Court ought to follow when making constitutional rulings.

Norma McCorvey, who filed the lawsuit under the legal alias “Jane Roe,” was expecting her third child in 1969. In Texas, where McCorvey resided, it was against the law to have an abortion unless it was essential to preserve the mother’s life. Asserting that Texas’s abortion regulations were unconstitutional, her counsel filed a case on her account in a federal court in the United States against Henry Wade, the district attorney in her area. The related Texas abortion laws were deemed unconstitutional following a decision in her favor by a three-judge panel of the U.S. District Court for the Northern District of Texas.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees a basic “right to privacy” that safeguards a pregnant woman’s right to an abortion. The Court did, however, rule that the right to an abortion is still not absolute and must be weighed against the interests of the state in safeguarding the health of the woman and the unborn child. By setting a trimester timeline that would control all abortion laws in the US, the Court was able to reconcile these conflicting interests.

Governments were only able to mandate that abortions be carried out by licensed medical professionals during the first trimester. Governments may impose restrictions on abortions during the second trimester, but only to safeguard the health of the mother and not the fetus. Abortions might be restricted and even outlawed beyond viability (the third trimester and the final weeks of the second trimester), but only if the legislation made an exemption for abortions required to save the mother’s “life” or “health.” The Court further categorized the right to an abortion as “fundamental,” which compelled courts to assess contested abortion restrictions using the strictest possible judicial review standards in the United States.

One of the most divisive rulings in American history was the Roe decision by the Supreme Court. For decades, pro-life politicians and activists fought to overturn the judgment. In its 1992 ruling Planned Parenthood v. Casey, the Supreme Court upheld its “central holding” notwithstanding criticism of Roe. Although Casey rejected Roe’s trimester structure and substituted a more flexible “undue burden” test for Roe’s “strict scrutiny” standard.

Planned Parenthood v. Casey 

The second landmark case decided by the US Supreme Court was Planned Parenthood v. Casey. The Court changed the criteria for evaluating limits on the right to an abortion and created the undue burden test as a replacement in a plurality judgment. Roe v. Wade established the right to an abortion.

The Pennsylvania Abortion Control Act of 1982 had five sections that were challenged; among them were those requiring a waiting time, spouse notification, and (for minors) parental approval before undertaking an abortion operation. The Supreme Court upheld the “essential holding” of Roe, according to which the Due Process Clause of the Fourteenth Amendment safeguarded a woman’s right to an abortion before fetal viability, in a plurality opinion written jointly by associate justices Sandra Day O’Connor, Anthony Kennedy, and David Souter.

The Roe trimester framework was invalidated by the Court in favor of a viability analysis, permitting states to enact abortion prohibitions that are effective throughout the first trimester of pregnancy. The Court also removed the strict scrutiny standard of review mandated by Roe with the undue burden standard, which declared abortion restrictions unconstitutional if they were put in place with the intention of “putting a significant barrier in the way of a woman seeking an abortion of a nonviable fetus.” The Court rejected the spousal notification requirement while upholding four other elements of the Pennsylvania statute by using the new benchmark of scrutiny.

Dobbs v. Jackson Women’s Health Organization 

The latest landmark ruling by the U.S. Supreme Court, Dobbs v. Jackson Women’s Health Organization, overturned Roe v. Wade and Planned Parenthood v. Casey and declared that there is no right to abortion under the U.S. Constitution.

The dispute centered on the validity of a state law passed in 2018 in Mississippi that outlawed most abortion procedures beyond the first 15 weeks of pregnancy. Initial rulings issued by lower courts had stopped the statute from being enforced. The injunctions were based on the decision in Planned Parenthood v. Casey, which barred states from outlawing abortion before fetal viability, usually within the first 24 weeks, because a woman’s right to privacy underneath the Fourteenth Amendment of the United States Constitution protects her right to an abortion throughout that period. Amy Coney Barrett was appointed to the Supreme Court in 2020, marking the ideological turning point in the court’s history. Before her nomination, Barrett had been a vocal opponent of abortion, allowing Dobbs to challenge both Roe and Casey.

In December 2021, the Supreme Court held preliminary hearings. A leaked copy of Justice Samuel Alito’s majority opinion was made public by Politico in May 2022. By invalidating the precise privacy rights in concern, removing state intervention, and returning the decision to the states, it would reverse Roe and Casey. The document’s legitimacy was affirmed by the Court in a statement from Chief Justice John Roberts of the United States, who also noted that this was not a final verdict or the Justice’s final judgment, which was anticipated before the end of July.

On June 24, 2022, a 6-3 judgment was made to overturn the decisions of the lower courts; Roe and Casey were also reversed by a tighter 5-4 vote. According to the overwhelming view, states should have the freedom to decide how to regulate abortion because it is not a constitutionally protected right. The copy that was leaked and the majority opinion, both written by Alito, were remarkably similar.

The 14th amendment and the right to privacy

Congress approved the 14th Amendment in 1866, and it was adopted in 1868. It expanded citizenship to “all persons born or naturalized in the United States” and guaranteed rights to those living in states with discriminating legislation. It also provided rights of citizens to Black Americans who once were enslaved. The amendment guaranteed that both, the state and federal branches of government ensured the right to a fair trial and equality under the law. This has been utilized by the Supreme Court to support other rights and to stop states from passing legislation restricting those that aren’t expressly specified in the Constitution, such as the right to privacy.

Justice Harry Blackmun stated in his writing for the majority judgment in Roe v. Wade that the court determined a woman’s right to an abortion was part of the fundamental right to privacy guaranteed by the 14th Amendment. Although the Supreme Court upheld a woman’s freedom to make her own decisions, it also recognized the state’s role in preserving the “potential of human life.” As previously mentioned, the court devised a “trimester” framework for the legitimacy of abortions to balance the conflicting interests. It said in full that:

  • First Trimester (12 Weeks) – Gives a woman the ultimate right to have an abortion throughout this period.
  • Second Trimester (24 weeks) – Permits the government to restrict abortion to safeguard the mother’s health, but it cannot outright outlaw it.
  • Third Trimester (36 weeks): Governments may outlaw abortions unless the mother’s life is in danger because by this time the fetus is pronounced “viable” (around the end of the second trimester or at 24 weeks of pregnancy) and can live outside the womb.

The Supreme Court was frequently challenged with determining whether these limitations were legal as several states attempted to subvert Roe by placing bureaucratic barriers in the way of women seeking abortions. Later, in 1992, the Supreme Court’s decision in Planned Parenthood v. Casey invalidated the trimester framework. The court upheld a woman’s right to an abortion under Roe, but they also gave governments the power to restrict them in all three trimesters. The court concluded that for a defendant to successfully contest a statute’s constitutionality, it must be demonstrated that the legislation in question imposes an “undue burden.” This implied that states have the authority to enact legislation restricting abortions even during the first trimester to “safeguard a woman’s health.”

Numerous limits on abortion have been maintained in light of these new criteria. Some states have the following rules and regulations as prerequisites for getting an abortion:

  • a required waiting period of 72 hours following abortion counseling
  • an unrequired pre-abortion ultrasound for medical reasons
  • simple abortion pills also are placed in facilities that adhere to hospital-like standards
  • a medical professional-performed abortion
  • preventing abortion from being covered by private health plans

The main stakeholders: Women 

Putting in place hurdles such as not covering abortions in private health plans or forcing those wanting to get an abortion to get unnecessary ultrasounds only causes more stress and undue mental exertion on those wishing to get an abortion: women.

Lawmakers globally decide to be pro-choice or pro-life without realizing that by putting any legislation in place, they are committing a crime against women by the attempted theft of their bodily autonomy. Furthermore, the largest misunderstanding amongst lawmakers is that by outlawing abortions, they will be able to decrease and then completely abolish abortions however, the reality is that banning abortions only bans safe abortions. Abortions will continue to happen irrespective of legality and therefore, legality only affects the level of safety guaranteed to the woman receiving the abortion. Understanding these crucial details would allow for proper and safe health care measures to be put into place for women which would allow for increased safety and security.

Parma Abbas
Latest posts by Parma Abbas (see all)

Facebook comments

RELATED ARTICLESMORE FROM AUTHOR