The Supreme Court and the Future of Roe v. Wade

One of the more dubious assumptions underlying the recent assaults on reproductive rights in this country is the notion that abortion is a kind of niche practice, which there is little for and which will be even less needed in the indefinite future. Defending the new Texas law that bans abortions after about six weeks and makes no exception for pregnancies resulting from rape, Governor Greg Abbott said that this restriction will not be a problem as he plans to “eliminate rape in the state.” “. . Over the next few months, the Supreme Court will be reviewing the constitutionality of a Mississippi bill that bans most abortions after fifteen weeks. This case, Dobbs v Jackson Women’s Health Organization, is widely viewed as an opportunity for judges to overturn the nearly fifty-year-old precedent of Roe v. Wade, if they so choose.

Illustration by João Fazenda

Mississippi’s mandate to uphold its law includes, among other things, the assertion that women’s lives are so much freer, more equitable, and full of birth control opportunities than in 1973, when Roe legalized the right to abortion nationwide that we can on the Stay on track. “Modern options and beliefs about childbirth have blunted the concerns Roe rested on,” state officials claim – namely, that unwanted pregnancies have been difficult for women and their life prospects. But the Mississippi brief says everything is different now: laws against pregnancy discrimination and family vacations “make it easier for women to have both careers and rich family lives.” They add that although “abortion was previously viewed as critical as an alternative to contraception,” it is no longer because birth control is more available and reliable.

The errors of fact and judgment in this condescending argument are staggering. The United States, among the developed world alone, does not mandate paid family vacations. The great advances in women’s access to work and the public sphere have been since the early 1970s, when abortion was legalized, and it is very likely that the two developments had something to do with one another. Moreover, even in an egalitarian society with reliable access to contraception and childcare for all, people will still be able to make the most intimate, life-changing decisions about when and whether to have children. Many people will still feel the need to terminate a pregnancy for reasons – health risks and crises, destructive or failed relationships, personal economic hardship, the needs of other children – that have little to do with the prevailing social conditions.

It’s true that the latest data shows that unwanted pregnancy and abortion rates have declined since the early 2000s, but both are still common. According to an analysis by the Guttmacher Institute, almost every fourth woman will have had an abortion by the age of 45. The practice that anti-abortion attorneys seek to portray as an unnecessary and outdated privilege (and shameful) is a form of health care that hundreds of thousands of people turn to every year, especially those on low incomes. (Half of all abortions are performed by people below the federal poverty line.) Not everyone can afford or get reliable birth control. And despite Abbott’s absurd assertion, there will always be people who become pregnant through forced unprotected sex.

Consistently preventing pregnancy during the reproductive life span is not that easy, and this period has become longer and longer. Lawyer and bioethics professor Katie Watson estimates that a fertile woman who has regular sex with a man during her reproductive years will have to dodge up to twenty-nine pregnancies if she only has two children and wants to avoid an abortion. That’s a lot of contraception to rely on. In addition, ample evidence shows that abortion restrictions don’t end the practice. The need remains, and women find a way to meet it, although sometimes it requires ingenuity and legal and physical risk taking. People in difficult circumstances should not have to deal with such challenges.

It is important to acknowledge all of these facts in life because anti-abortion lawyers strive to eradicate them. Mississippi contends that no “legitimate interests of trust require the retention of Roe and Casey,” the 1992 Supreme Court ruling that upheld a constitutional right to abortion while allowing states to impose limits prior to the fetal viability stage. The state also says judges needn’t worry about the citizen’s decision – the principle that would encourage them to respect legal precedents – or the impact on people’s lives if Roe is kicked out. The case law on abortion, the petitioners write, has always been “broken and unsettled”, and the “court is unable to judge” how dependent society is on abortion. But, as the lawyers representing the lead defendant – the only remaining abortion clinic in Mississippi – point out, the court has tried several abortion cases since Roe, and while it has allowed states to abolish the constitutional right to abortion, it has also clearly confirmed the core message .

The court that will review Mississippi bill – the first major abortion case since Amy Coney Barrett replaced Ruth Bader Ginsburg – is made up of three Liberals and six Conservatives, three of whom were appointed by Donald Trump. As a law professor at Notre Dame, Barrett signed a petition denouncing abortion. Clarence Thomas has openly declared his disdain for Roe. The best hope for abortion law to be upheld could be that Justice Colonel John Roberts and at least one other Conservative decide that the overthrow of Roe is too big a blow to established doctrine or that it would make the court look too overtly political. Roberts has shown a penchant for this way of thinking; the others less. (Last week, when speaking at the University of Louisville’s McConnell Center – named after the Republican Senator who got her confirmation – Barrett claimed that the court was never partisan.)

State decisions should not only protect institutions, but also citizens who are dependent on certain rights. Access to abortion, despite all the objections buried in it, is one such right, and most Americans want to keep it. As Judges Anthony Kennedy, Sandra Day O’Connor, and David Souter wrote for Plurality in Casey, “Women’s ability to participate in the economic and social life of the nation has been facilitated by their ability to control their reproductive life.” That was 1992 like this; it is no less true in 2021.

source https://www.bisayanews.com/2021/09/19/the-supreme-court-and-the-future-of-roe-v-wade/