Associate Professor Lesley Russell takes a deep dive into the legal, medical and political ramifications of the Supreme Court of the United States decision to end the constitutional right of women in the US to abortion, as well as the wider implications for global health.
Lesley Russell writes:
With its decision in Dobbs v Jackson Women’s Health Organization, the Supreme Court of the United States (SCOTUS) has overturned nearly 50 years of precedent set in Roe v Wade and Planned Parenthood v Casey and stripped away the constitutional right to abortion.
This ruling that means state politicians – not the person who is pregnant – will now make the critical decisions about whether to continue a pregnancy.
At least nine states have already banned abortion; many more will soon follow suit to severely restrict or outright outlaw abortion, thus putting at risk the lives, health and futures of girls and women.
The SCOTUS decision ushers in a new era of surveillance, prosecution, and incarceration for those suspected of facilitating unlawful abortions – including the girls and women involved.
There is no easy or timely way to reverse this decision, which can be clearly sheeted home to former President Trump’s ongoing legacy.
There will also be international ramifications. Reproductive rights and access to safe abortion care are at risk in many parts of the world and there are fears that these types of rights will be “steamrolled” by the American changes.
The decision was described as a “catastrophic blow to the lives of millions of women, girls and pregnant people,” in a statement signed by more than 100 global health organisations.
History of the political and judicial battle over abortion rights
For an outline of the history of the long-term concerted efforts by conservative, mostly Republican, politicians and organisations to restrict the right to abortion in the US, I recommend the following articles:
The tumultuous history that led to the landmark Roe v Wade ruling. National Geographic magazine.
How the real Jane Roe shaped the abortion wars. The New Yorker.
Roe v Wade v Trump. Inside Story magazine.
Now to the history of the Mississippi case Dobbs v Jackson Women’s Health Organisation.
In 2018 Mississippi enacted a law that would ban all abortions after 15 weeks since the first day of the last menstrual period except in medical emergencies and in cases of severe foetal abnormality, and without an exception for pregnancies resulting from rape or incest.
Fifteen weeks is much earlier than the current viability standard established by Roe v. Wade (when the pregnancy cannot survive outside of the pregnant person’s uterus, typically understood to be between 24 and 28 weeks of pregnancy).
On March 19, 2018, the same day the Mississippi Governor signed the bill into law, Jackson Women’s Health, the only abortion provider in Mississippi, challenged the law in federal court. The US District Court for the Southern District of Mississippi and then the 5th Circuit Court of Appeals both struck the law down as unconstitutional. The State then appealed to the Supreme Court, which accepted the case for review.
This law has always been subject to legal action and has, until now, not been implemented; it will come into effect on July 1.
Jackson Women’s Health, busy providing abortion services to the end, says it will try to stay in the business of providing women’s health services.
The case bears Dr Dobbs’s name because he leads Mississippi’s Health Department and is in charge of regulating the only abortion clinic in the state, Jackson Women’s Health Organization. He is retiring from this post at the end of July.
Further reading:
Abortion at SCOTUS: Dobbs v Jackson Women’s Health. Kaiser Family Foundation.
The abortion case is named after Thomas Dobbs, who says he has nothing to do with it. NPR
Dobbs, Named in Abortion Case Ending Roe, Had Little to Do With It. New York Times.
What the US Supreme Court decision says
A leak of the draft majority opinion on Dobbs v Jackson Women’s Health Organization on May 2 presaged what was to come, and in fact the final decision varies little from that early draft.
The decision was 6-3 in support of the case brought by Mississippi and 5-4 in support of overturning the Roe and Casey precedents.
The majority opinion was written by Justice Samuel Alito and it reads more like a polemic against abortion, with hostility towards both patients and providers, than a piece of legal analysis.
It begins and ends with the assertion that reproductive freedom cannot possibly be guaranteed by the Constitution because the word “abortion” is not spelled out in that document.
Roe v Wade made the case that the right to bodily autonomy is a component of personal “liberty” which is expressly protected under the Fifth and Fourteenth amendments. But Alito rejected this on the grounds that the ability to terminate a pregnancy is not “deeply rooted” in the nation’s “history and tradition”. This approach denies the reality of the lives of American women over the centuries.
Chief Justice John Roberts took the less ideological, more reasonable (but still conservative) approach. He wrote a concurrence in the judgment, advocating for SCOTUS to uphold Mississippi’s 15-week ban (the law at issue in Dobbs) without formally overruling the precedents. He recognised a right to abortion that extends “far enough to ensure a reasonable opportunity to choose” but no further.
The liberal justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan) wrote a joint dissent observing that SCOTUS has never previously rescinded an individual right and left it up to the states to determine whether that right is anchored in the Constitution.
They also recognised the impact on women, stating: “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.”
They observed: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
Explaining the SCOTUS decision:
6 takeaways from the Supreme Court opinion that ended Roe v. Wade. The Washington Post.
The Dobbs v. Jackson Decision, Annotated. New York Times.
The ruling is seen by historian Jill Lepore as a triumph for the doctrine of originalism, with significant consequences for the nation. “The version of American history you get from constraining your historical evidence to the documents originalists see as mythical gives you centuries of constitutional history when women and People of Colour were completely disenfranchised. And that’s the basis now for the continued denial of rights.”
Trump’s appointments made this possible
This decision was made possible by the Trump appointees, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, to SCOTUS.
Trump came to power promising to appoint Supreme Court justices to overturn Roe v Wade – and he did. He was able to appoint three new justices, all seen as very conservative.
Notably, his appointment of Judge Kavanagh was made possible because Republican Senate Leader Mitch McConnell refused to allow the Senate to consider President Obama’s nominee Merrick Garland (a progressive) to replace Justice Antonin Scalia (a conservative).
And in the last days of his presidency, Trump got to replace Justice Ruth Bader Ginsburg, a fierce abortion rights advocate, with conservative Amy Coney Barrett. This time McConnell saw no problems in a late appointment.
The position of Supreme Court nominees on Roe v Wade is seen as a litmus test during their Senate confirmation hearings. When asked at his hearing, Kavanaugh described the case as “important precedent of the Supreme Court that has been reaffirmed many times,” and said that Casey “specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
That statement clearly mattered little when the chance came to act.
As the dissenting opinion notes “the new and bare majority of this Court – acting at practically the first moment possible – [sought to overrule] Roe and Casey.”
Of course Trump was very keen to take responsibility for the SCOTUS decision.
“Today’s decision, which is the biggest WIN for LIFE in a generation…(was) only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court,” he said in a statement.
What Americans think about abortion
The abortion debate in America is often framed as binary, with “pro-life” people on one side, seeking to restrict abortion’s availability, and “pro-choice” people on the other, opposing government restrictions on abortion.
But as polling from the Pew Research Center shows, relatively few Americans on either side of the debate take an absolutist view on the legality of abortion – either supporting or opposing it at all times, regardless of circumstances.
The vast majority of Americans do not support the SCOTUS decision. Nearly two-thirds of Americans believe that abortion should be legal in all or most cases. And more Americans describe themselves as pro-choice today than at any other point in the last 25 years.
Polling shows that SCOTUS is more conservative than the majority of Americans and more in line with the average Republican voter’s position.
This decision, coming just a week after the court’s controversial decision on gun control, is likely to undermine public trust in SCOTUS and its decisions, especially among liberal and Democratic voters.
Legal scholar Linda Greenhouse has described it as a “requiem for the Supreme Court”.
Political ramifications
The SCOTUS decision will create two Americas when it comes to abortion access: the mostly red (Republican) states where abortion is illegal in most circumstances, and the mostly blue (Democratic) states where it is mostly available with restrictions.
This national cleaving will go far beyond abortion access, affecting healthcare, the criminal legal system and politics, at all levels, in the coming years.
Further reading:
18 ways the Supreme Court just changed America. Politico
Supreme Court’s ruling overturning Roe v. Wade “will have huge political ramifications”. Harvard Kennedy School.
What the states will do now
Currently 16 states plus the District of Columbia have laws that protect the right to abortion. In two other states, courts have ruled that the state constitution establishes that right. Those states are concentrated on the East and West coasts.
On the other end of the spectrum, 13 states have “trigger laws” on the books that, with Roe and Casey now overturned, will be quickly implemented to ban nearly all abortions. States like Arkansas, Kentucky, Missouri, South Dakota and (of course) Mississippi have moved quickly to implement these laws.
By nightfall on 24 June (the day the SCOTUS decision was released), women in Kentucky and Arkansas had no right to an abortion at any stage of pregnancy – with no exceptions for incest or rape. Anyone who performed one could be charged with a felony.
In total, 26 states are now expected to act to ban abortion. Kansas and Montana, which are among the states that have abortion rights enshrined in their constitutions, could see rollbacks in those protections through a ballot measure in Kansas and a legal challenge by the Montana attorney general.
One of the consequences will be that a chasm will open up between states over the provision of out-of-state care and abortion pills.
Further reading:
Roe v Wade has been overturned. The 19th explains what will happen next in states across the country. 19th News.
Five things to know now that the Supreme Court has overturned Roe v. Wade. CBS News.
Who is affected
Around 64 million women and girls of reproductive age live in the United States, and more than half of them live in states that will likely seek to ban or further restrict access to abortion.
Without Roe, here’s who could lose access to abortion in the US. New York Times.
In the most doctrinaire pro-life states, the abortion regime will be more austere than that of Pakistan or Saudi Arabia, which permit the procedure to preserve the health, not just the life, of the mother.
Democratic-dominated states have codified Roe’s right to abortion up to the point of foetal viability, a more permissive standard than that of Norway and Sweden, which have gestational limits for terminating pregnancies at 12 and 18 weeks, respectively. In four states and the District of Columbia, late-term abortion is legally permissible even if the mother’s health is not at risk.
It should be noted that getting an abortion in the United States has never been easy.
Law Professor Carol Sanger wrote in 2017: “Much of current abortion regulation operates to punish women for their decision to terminate a pregnancy.” She argued that the process of obtaining an abortion is so onerous as to be a kind of punishment.
Who has abortions
It is not possible to know how many abortions there are every year in the United States. Two organisations – the Centers for Disease Control and Prevention (CDC) and the Guttmacher Institute – try to measure this, but they use different methods and publish different figures.
In 2019 (the most recent data), the CDC reported 629,898 abortions. Guttmacher’s latest available figures are from 2020, when it says there were 930,160 abortions nationwide. The figures reported by both organisations include only the legal induced abortions conducted by clinics, hospitals or physicians’ offices, or that make use of abortion pills dispensed from certified facilities such as clinics or physicians’ offices. They do not account for the use of abortion pills that were obtained outside of clinical settings.
One in four American women will have an abortion during their lifetime. The typical woman seeking an abortion is in her late 20’s, unmarried but already a mother, has some tertiary education, has a low income, is in her first six weeks of pregnancy, and is having her first abortion.
Poor women account for the majority of abortion patients and those with an unintended pregnancy. Forty-two percent of American women with an unintended pregnancy choose to end their pregnancies. Barriers to contraception play a major role here.
Overall, it will be women of colour who will be most impacted by the SCOTUS decision.
Further reading:
Who are the 1 in 4 American women who choose abortion? The Conversation.
What the data says about abortion in the US. Pew Research Center.
Who Gets Abortions in America? New York Times.
Turning back the clock on American women’s health
An article written in the wake of the SCOTUS abortion decision argues that it goes further than merely overturning the 50 years of progress since the Roe decision and in fact turns the clock back some 200 years.
It points out that the majority decision has citations referencing abortion cases as far back as the 13th Century and relying on legal sources like 17th-century judge Sir Matthew Hale, who once presided over a witchcraft trial.
In the same vein, the Republican Governor of Nebraska has said that rape victims should not have access to abortions. In Texas a child who has been raped by a family member cannot now access abortion services.
As an article in The New Yorker states: “We’re not going back to the time before Roe. We’re going somewhere worse.”
The United States now joins just three other countries (Poland, El Salvador and Nicaragua) that have acted to restrict reproductive health rights since the 1990s.
There are certainly concerns for what this now means for maternal health and wellbeing. The United States has the highest rate of maternal mortality among wealthy countries, and the rate for Black women is three times that for white women.
A recent study shows that states with the most restrictive abortion laws and policies have significantly higher maternal mortality rates. Because a majority of Black women live in southern states that are most likely to further restrict or ban abortion, the SCOTUS decision will exacerbate the Black maternal health crisis.
The United States is also the only developed country that does not guarantee paid maternity leave.
The emboldened anti-abortion lobby will now seek to limit access to medical abortion (mifepristone, previously known as RU487 and misoprostol) and it is also likely the previous debates over issues like health insurance coverage for contraceptives will be re-ignited.
In 2020 SCOTUS upheld a Trump Administration rule that made it more difficult for women to get access to birth control as part of their health insurance plans if their employer has religious or moral objections to contraceptives.
For more:
The Supreme Court overturned Roe v. Wade. What’s next? Your health questions answered. NPR
Impact on healthcare providers
Most of the new, more stringent anti-abortion bills have very punitive provisions for those people, including doctors and nurses, who provide abortions or even access to abortions – including in some cases the person who drives the patient to an abortion appointment.
Such provisions will have a chilling effect on the provision of reproductive health services and pregnancy care. One of the most disturbing types of fallout will be the threat to access to care for managing pregnancy loss.
Many of the treatments and procedures needed to manage a miscarriage are the same as those used for abortion care. There are fears that some doctors will be reluctant to treat women having a miscarriage, especially where that would involve procedures like dilation and curettage, and women with ectopic pregnancies.
Now the United States is (re)entering an era not just of unsafe abortions but also the widespread criminalisation of pregnancy care.
See:
Penalizing Abortion Providers Will Have Ripple Effects Across Pregnancy Care. Health Affairs.
For doctors, abortion restrictions create an ‘impossible choice’ when providing care. NPR
Affordability of abortions
The Hyde Amendment prevents federal funds, including Medicaid, from covering abortion care, except when the woman’s life is endangered or in cases of rape or incest. However, some states use public funds to pay for abortions for poor women.
Many states have legal restrictions that prevent private insurance plans from covering abortion.
Together, this means most patients pay for at least some of their abortion costs out-of-pocket.
Recent research shows charges for first-trimester procedural abortions are increasing, and acceptance of health insurance is declining.
Most health insurance plans are regulated by the states in which they are sold (the exception is the plans sold via the federal Obamacare marketplace). State-level variations are already the norm for health insurance coverage of abortion, particularly for health plans purchased by individuals and small groups.
States that will now ban abortions are generally the same states that already prohibited abortion coverage by all state-regulated health plans. Currently some 53 percent of abortions are paid for by the patient.
Reactions
In the United States, the decision has further divided an already divided nation. It will serve to drive the political stakes in the upcoming midterm elections.
President Joe Biden, in an address to the nation, said the only way Americans can protect abortion rights is to vote for Democrats. “We must elect more senators and representatives who will codify a woman’s right to choose in federal law once again, elect more state leaders to protect this right at the local level,” he said.
Many world leaders, including America’s allies, have called the decision ‘horrific’ and ‘appalling.’
Croakey editor-in-chief Dr Melissa Sweet has compiled a comprehensive list of responses, which you can access here.
International ramifications
There are concerns about the messages this decision sends internationally and how it will affect the ability of the United States to advocate for gender equality, human rights, and health care equity.
In particular, there are concerns about a “shock wave” in Africa where countries like Benin and Kenya have recently signalled their commitment to protecting and fulfilling the rights of women and girls to access abortion care.
In Australia, some worry that overturning Roe v Wade could reignite the debate about abortion access and increase the stigma for people who terminate unwanted pregnancies.
Experts quoted in an Insight article in the Medical Journal of Australia say Australians would be remiss to be too complacent or to underestimate the impact of this decision.
“This is a very real concern,” said Dr Tania Penovic, from the Castan Centre for Human Rights Law at Monash University.
“Our situation is very different from the US but we must not be numbed into complacency. Although abortion has been largely decriminalised in Australia, the politicisation of abortion in the US has not left Australia untouched.”
Further reading:
The Supreme Court turns the US into a cautionary tale. Washington Post.
Wider consequences
In the United States the SCOTUS decisions on guns and abortion has emboldened conservatives who want more. Issues like the rights of racial minorities and the LGBTQI community, marriage equality and privacy that were established on similar legal grounds as Roe could be next on the agenda.
That’s clearly where the conservative SCOTUS justices are looking to go – led by Justice Clarence Thomas. They signalled this in their two recent decisions.
The decision that struck down New York’s strict limits on concealed carry renders most of the nation’s gun control laws presumptively unconstitutional
In a concurring opinion on the abortion decision, Justice Thomas proposed that the court should now also reconsider its precedents on contraception, LGBTQI rights and same-sex marriage.
Professor Adam Elshaug said on Twitter: “Of note, Justice Thomas in his concurring opinion states the court should reconsider Griswold, Lawrence and Obergefell. These are the rulings that protect contraception, same sex relationships and marriage (respectively)… The GOP long game. Speechless.”
Options moving forward
The most obvious way to address the SCOTUS decision is for the Congress to enact legislation to make abortion a right under federal law.
Such a bill (the Women’s Health Protection Act of 2021) was passed by the House of Representatives in August last year, but needs 60 votes to pass in the Senate, and those votes are simply not there.
In an opinion piece in the New York Times, Senators Elizabeth Warren and Tina Smith urge Biden to declare a public health emergency to protect abortion access for all Americans. This would unlock critical resources and authority that states and the federal government can use to meet the surge in demand for reproductive health services.
Health policy experts have called for high-quality family planning to be a core element of Medicaid managed care.
Others have called for an expansion of the number of justices on the Supreme Court to offset the conservative majority, although Biden has indicated he does not support this approach.
The White House knew this decision was coming and has been working to mitigate some of the ruling’s effect. This includes expanding access to medication abortion and ensuring women are able to cross state lines to obtain abortions.
“This decision must not be the final word,” Biden said in his speech made in response to the SCOTUS decision. “My administration will use all of its appropriate lawful powers. Congress must act. And your vote? You can have the final word. This is not over.”
Shifting focus
The war over reproductive rights will now heat up rather than cool down as the central front in the battle has now moved from the courtroom to the ballot box.
Both pro- and anti-abortion activists will be planning to use this issue to get out the vote in November. This could help galvanise voters who normally don’t turn out in large numbers for mid-term elections.
The political pundits see the Democrats running hard on abortion restrictions and Republicans – who have already lost much of the support of suburban white women – as treading more carefully.
The Democrats will be led by President Biden, who has declared that “Roe is on the ballot” and “personal freedoms are on the ballot.”
There was already a fight to keep the party’s slim congressional majorities (the current prediction is that Democrats will lose the House but might gain several Senate seats) and now there will also be a focus on Democratic candidates for governor, attorney general and offices at the state level, given that is where abortion laws will be determined.
The women of America (and Australia) would do well to internalise these words from fierce abortion rights advocate Justice Ruth Bader Ginsburg, delivered during her Supreme Court confirmation hearing – and then make sure that the politicians they vote for support them.
She said:
“This is something central to a woman’s life, to her dignity… When government controls that decision for her, she’s being treated as less than a fully adult human.”
See Croakey’s archive of articles on women’s health