Abortion Rights in the United States of America
ROE V WADE
We’ve seen it painted across the headlines, all over social media, and on the lips of anyone willing to give their own opinion on the matter.
And at this point, you are by no doubt wondering - “What does this actually mean?”, and “What relevance does an American judgment have on South Africa?” - 15,000 km’s away?
Our hope is that after reading this article, you will gain sufficient insight to pass your own opinion on Roe v Wade.
Because it is, undoubtedly, an important topic. One that should not only be spoken about, but one that should be better understood - regardless of how sensitive or polarising this topic may be.
We will do our utmost to flesh out the finer details below, but there is one thing that we are absolutely sure of - the recent overturning of the landmark decision, Roe v Wade, has dealt a hammer blow to the progressive reproductive rights of women across America.
Essentially, the overturning of the decision in Roe v Wade (made by an overwhelmingly male, conservative US Supreme Court) has effectively taken away the constitutional right women in America have to abortion and left it to each state to decide for itself whether or not abortion should be legalised or outlawed.
“But it’s 2022, how could this possibly have happened?”.
We hear you!
There are immense opposing views from the one side - the right to life (“pro-lifers”) versus the other side, the right to choose (“pro-choicers”).
And to understand why, allow us to delve into the finer details below.
‘Abortion’, lets break it down...
Why does the word ‘abortion’ create such an uproar? What does “abortion” actually mean, and why are so many afraid to talk about it?
It seems that there are few words in the English language that evoke as many mixed emotions and feelings as the word abortion does. Rightly so.
According to the Merriam-Webster Dictionary, an abortion is defined as -
“The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or foetus: such as
- spontaneous expulsion of a human foetus during the first 12 weeks of gestation.induced expulsion of a human foetus.
- expulsion of a foetus by a domestic animal often due to infection at any time before completion of pregnancy.”
However, this formal definition fails to capture what lies between the lines. The word abortion is often associated with words such as regret, fear, judgment, and guilt. A word that tends to slap us right in the face and make the hairs on our neck stand up.
And that is no coincidence.
We are conditioned by society to think that abortion is wrong, we are taught that it is a nasty word – one that we should not speak about. But, there’s no denying the aura of ‘taboo’ which surrounds the word.
The question is…why?
Perhaps its owing to the fact that the word abortion – both as a word and as a subject – sits squarely at the complicated intersection of politics, religion, and law. Not the most comfortable position for such a word, or the topics we are told to steer clear of during polite conversation.
But it is a word that we have all heard spoken about – more so recently than ever before. And not in hushed tones and indications of “secrecy” as it used to be.
Instead, “abortion” has made headlines. It has caused protests and has also caused a riot of opinion that has been voiced loudly on both sides of the fence – both on the pro-life side as well as on the pro-choice side. It has caused division, also more so now than ever before.
But the fact remains – a subject that used to be very “hush-hush” has been brought into the spotlight. And with it, a flood of emotion and opinion has followed.
Was abortion legal in the United States of America?
On the 24th of June 2022, the United States Supreme Court overturned the 1973 landmark decision Roe vs Wade, which had “protected abortion access up until the point that a foetus can live outside the womb — typically set at 22 or 24 weeks of pregnancy”.
Whilst this was welcomed by some who fall on the side of the fence of “pro-life” (as one would predict), the decision to overturn Roe v Wade has caused women around the world to voice their disbelief that such a ruling could have been handed down. Especially in 2022!
In an article by Wire titled Explained: The Consequences of the US Supreme Court Overturning Roe vs Wade, they set out the following -
“The US Supreme Court on Friday issued a ruling on Dobbs vs Jackson Women’s Health Organization, overruling Roe vs Wade, eliminating the constitutional right to abortion after almost 50 years. This decision may not only transform American life or reshape the nation’s politics or the lives of American women – but may go on to have serious implications for people who are pro-choice, the right to abortion and socio-legal movements that are centred on reproductive rights across the globe.
The ruling may also lead to all but total bans on the procedure of abortion in about half the US states.
With Roe v. Wade overturned, abortion rights will now be left to individual US states to decide. Twenty-six states are certain or likely to ban abortion, according to the Guttmacher Institute, a research organization that supports abortion rights. Of those, 13 have ‘trigger bans’ in place — laws that will take effect either immediately or by quick state action.
Without Roe vs Wade, an individual’s ability to access abortion depends on the state where they live.
A regressive turn for ‘freedom,’ ‘human rights,’ ‘development’ and ‘social change’
The legal, social, and economic implications of the Supreme Court decision will unfold across American states in the months and years to come. How this may weaken the ‘federal’ core of American constitutionalism and essential freedoms – leaving too much in the hands of the state while testing its powers – is also up for debate, across political spectrums.”
The inevitable result? Chaos, uncertainty, and widespread anger.
But should we even be surprised by this ruling?
Unfortunately, this is not the first time we’ve seen the law unduly insert itself squarely within the rights belonging uniquely to women- and that is problematic.
Abortion, which was once legal and seemingly freely available, is now not.
And if the above is anything to go by, it is not difficult to understand why this ruling has divided many Americans, and why women around the world are so concerned.
There is, most certainly, an infringement of a constitutional right to freely choose to have an abortion in the USA. There is no mistake about that.
If one takes emotion, feeling and opinion out of the equation (as hard as it may be), a legal right has undoubtedly been infringed upon. A right which was once considered to be a Constitutional Right in the USA.
And that’s the point.
What does Roe vs Wade mean anyway?
Let’s back-up a little bit.
We have all heard Roe vs Wade repeated time and time again on the News. We have witnessed the chaos and division it has caused in the USA. We have sympathised with women who feel that their rights have been infringed upon. And we have watched as the world takes in what this decision could mean – not only for the USA, but for countries “closer to home.”
It’s therefore only fitting that we look at what Roe vs Wade is actually about. What it means.
Yes, it deals with abortion at its centre, but what else did it say?
In Summary, Roe vs Wade dealt with the following facts –
“Jane Roe, an unmarried pregnant woman, filed suit on behalf of herself and others to challenge Texas abortion laws. A Texas doctor joined Roe's lawsuit, arguing that the state's abortion laws were too vague for doctors to follow. He had previously been arrested for violating the statute.
At the time, abortion was illegal in Texas unless it was done to save the mother's life. It was a crime to get an abortion or to attempt one.
In Roe v. Wade, the Supreme Court decided two important things:
- The United States Constitution provides a fundamental "right to privacy" that protects a person's right to choose whether to have an abortion.
- But the abortion right is not absolute. It must be balanced against the government's interests in protecting health and prenatal life.”
At the end, the Supreme Court ruled that “unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment.”
- What’s the 14th Amendment?
The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States—including former enslaved people—and guaranteed all citizens “equal protection of the laws.”
According to FindLaw, whilst Roe vs Wade is considered to be the decision that legalised abortion in the USA, that is not exactly true.
What it did do was “change the way states can regulate abortion and characterized abortion as something that was covered under constitutional rights of privacy.”
And that had the practical implication of making abortions “legal” under the US Constitution.
But Roe vs Wade caused a massive amount of dissent
FindLaw goes on to state that –
“Many opponents of the decision argue that because the text of the Constitution doesn't explicitly talk about abortion, it should be left up to the states to regulate. Others say that a person should be protected by the Constitution at conception. Under that logic, abortion violates the Constitutional rights of the unborn child. The Supreme Court even recognized the polarizing nature of the abortion issue in its opinion:
"One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to colour one's thinking and conclusions about abortion."
As Justice Harry Blackmun (who wrote the decision in Roe) points out,
“Abortion will never be a simple issue. It remains a hotly debated topic because someone's opinion on it depends on their view of the world, and when they believe life begins.”
And the above sentiment could seemingly not have been more correct.
The overturning of Roe vs Wade
In Dobbs v. Jackson Women's Health, the matter which (in reality) resulted in the eventual overturning of Roe v. Wade, the Supreme Court stated that -
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The Fourteenth Amendment's Due Process Clause has been found to guarantee certain rights that are not spelled out in the Constitution, but that those rights are "deeply rooted in this Nation's history and tradition. Abortion does not fall within this category, as such a right was entirely unknown in American law until the late 20th century.
It is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition.’"
The five reasons why Roe should be overruled include - the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance."
Where do we stand now?
The biggest question which has inevitably resulted from this decision to overturn a stare decisis (or precedent) has left a lot of people asking, “what now”?
How does this affect me?
Fair questions.
Some key factors resulting from this decision surround access to abortion by women who are unable to travel to a state where abortions are legal. This will, in turn, have a knock-on effect of causing financial hardship for many women, especially those already facing economic instability. Sadly, that predominantly affects the most marginalised women (women of colour and people who are economically unable to access abortion).
In the article Supreme Court’s overturning of Roe v. Wade will financially hurt the ‘most marginalized’ women, experts say -
“Among those denied an abortion, there was an increase in household poverty for at least four years relative to those who had an abortion. Years later, the women denied an abortion were more likely to lack the money to cover basic living expenses such as food, housing, and transportation.”
The other concern is women having access to safe abortions. If women are unable to access clinics offering safe, hygienic, and legal abortions, desperate women may take desperate (and unsafe) measures.
According to the WHO -
“Around 45% of all abortions are unsafe, of which 97% take place in developing countries. Unsafe abortion is a leading – but preventable – cause of maternal deaths and morbidities. It can lead to physical and mental health complications and social and financial burdens for women, communities, and health systems. Lack of access to safe, timely, affordable, and respectful abortion care is a critical public health and human rights issue.”
Further to the above –
“In developing countries, more than 22,000 women die from complications from unsafe abortion each year, and 6.9 million are treated for complications”.
And these stats and assumptions that refer to “developing countries” will, most likely, now extend to the USA as well (on the face of it anyway).
In addition, in States within the US where abortion is legal, clinics offering legal and safe abortions may become overwhelmed by people travelling there to get terminations, which would also curb access in the US in general.
With more women now facing having to give birth to a child, the result is (as set out in the article After Roe v. Wade: US researchers warn of what’s to come ) that “poor families will have kids before they’re ready”. And none of that can have a positive impact on the physical or mental health of the women and family members involved nor their overall financial wellbeing.
It is a mind-field of questions and “what ifs” and “I’m scared” and “what do I do?”
There are so many questions that are yet unanswered, and as South Africans, we can only sit and wait – watching to see what happens next.
Will overturning Roe vs Wade affect me?
Inevitably, those of us watching from the side-lines (or at least watching the news from our couches in South Africa), must be thinking – how does this judgement affect women in South Africa?
Fair enough.
Without going in to too much detail (right now), South Africa legalised abortion in 1996, through the Choice in Termination of Pregnancy Act 92 of 1996.
This Act gives women, “regardless of age or marital status, the right to access to abortion services within the first 12 weeks of pregnancy. The act can also extend access to 20 weeks of pregnancy in specific cases”.
Seen as one of the most liberal examples of abortion legislation globally, there are no signs that the decision handed down in the USA will have an impact on abortion law in South Africa.
That said, in our next article, we will be taking a look at the abortion laws in South Africa as well as those in neighbouring states briefly turning our attention to other leading first-world Countries.
In the meantime, if you have any questions on the information we have set out above or have a personal issue which you want to discuss with a suitably qualified legal professional, please do not hesitate to contact us at NVDBAttorney.
We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart.
