Reversing Roe v Wade: Can It Subtract A Woman’s Right To Choose?

“This is a scary day for women all across our country,” posted Sheryl Sandberg, chief operating officer of Facebook parent Meta Platforms Inc., to her Facebook and Instagram pages. “Every woman, no matter where she lives, must be free to choose whether and when she becomes a mother. Few things are more important to women’s health and equality.”

She was criticising the US Supreme Court’s written draft decision to overturn the Roe v. Wade abortion-rights ruling, posting that doing so would mean taking away “one of our most fundamental rights.”

What is the row about?

A draft of the US Supreme Court opinion got leaked and created public outrage late Monday, that outlines the court’s preliminary vote and calls on reversing a decades-old ruling that declared abortion legal within the US.

On May 2, 2022, Politico, a political journalism company, obtained a leaked legal initial draft enclosed by Justice Samuel Alito suggesting that the USA Supreme Court is ready to overturn Roe and Casey in a very significant judgement on Dobbs v. Jackson Women's Health Organization. Chief Justice John Roberts later discharged in an announcement confirming the legitimacy of the leaked document, however, he added that “it doesn't represent a call by the Court or the ultimate position of any member on the problems within the case”.

History of Roe v Wade

Roe v. Wade, was a landmark call of the US Supreme Court during which the Court ruled that the Constitution of the USA protects a pregnant woman's liberty to decide on the process of abortion while withholding excessive government restriction in 1973. This ruling struck down several US federal and state abortion laws. Roe fuelled an on-going abortion discussion within the US regarding whether or not or to what extent abortion ought to be legal, if laws need to decide the lawfulness of abortion, and what the role of ethical and non-secular views within the arena ought to be.

The decision concerned the case of Norma McCorvey, known by the legal anonym ‘Jane Roe’. Norma in 1969 became pregnant with her third baby. McCorvey desired an abortion, however, she lived in Texas, a state where abortion was illegal except when it was necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee,  filed a legal proceeding on her behalf in the US judiciary against the local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the US District Court for the Northern District of Texas ruled in her favour. The state of Texas then appealed to the US Supreme Court.

In January 1973, the US Supreme Court issued a 7–2 call in McCorvey's favour while the ruling said - The due Process Clause of the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman's right to choose whether to have an abortion. It upheld that this right isn't absolute and should be balanced against governments' interests in the protection of women's health and antenatal life.

The Supreme Court revisited and changed Roe's legal rulings in its 1992 call Planned adulthood v. Casey. In Casey, the Court reaffirmed Roe's holding that a woman's right to carry out an abortion is constitutionally protected, however abandoned Roe's trimester framework in favour of a standard based on foetal viability and overruled the strict scrutiny standard for reviewing abortion restrictions.

What will happen if Roe v Wade is turned?

In virtually twenty states within the USA, abortion will become illegal if Roe v. Wade is overturned. States that still permit abortion might see a flow of patients seeking abortion rights. Women of colour will be most affected by abortion restrictions. According to The Associated Press, women of colour and Hispanic women get done abortions at higher rates than their peers. Further, limits on abortion access will result in negative long health effects. Women of colour also experience higher poverty rates and could have a harder time travelling out of state for an abortion, the AP said. Limits on abortion access can lead to negative long-term health effects. A major study from the University of California, San Francisco found that women are harmed by being denied abortions. A group of women surveyed who gave birth had economic hardships that lasted for several years were more likely to raise the child alone, and were at higher risk of developing serious health problems than those who had abortions.

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What it would mean for the rest of the world

We may say it’s happening in the US. Why will it affect us? Well, surprisingly the effects of this decision will be felt the world over.

It would be a significant shift in abortion law within the US, however human rights advocates say such a move might weaken procreative rights across the world. In a statement Amnesty International's secretary-general, Agnès Callamard, said, the move would “damage the world perception of the US.” It would also “set a terrible example that other governments and anti-rights groups could seize upon around the world in a bid to deny the rights of women, girls and other people who can become pregnant,” she added.

Ireland legalised abortion in 2019, Argentina legalised it in 2020 and Mexico's Supreme Court voted to legitimize abortion last year. In February, Colombia's highest court legalized abortion till twenty four weeks of gestation. however with the U.S. poised to upend the nearly half-century-long constitutional protection for abortions, it could lead some countries to adopt new restrictive laws, said Tarah Demant, Amnesty International's interim national director for programs, advocacy and government affairs. Other countries could point to the U.S. to legitimize their own policies restricting reproductive rights, she said.

I agree with Shaun Maguire, a partner at the powerful venture capital firm Sequoia Capital, when she wrote on Twitter: “All women should have the right to choose.”

The views expressed are the author's own.