Roe v. Wade Overturned: US Supreme Court strikes down 49 year old law.

In a landmark decision that took close to 50 years, the pro-lifers in the United States have achieved what seemed impossible, the overturning of the Roe versus Wade ruling. The ruling was passed 49 years ago in 1973. Here are the details of the case that changed a generation's view on reproductive health, women's rights and child birth. 

 

Roe versus Wade, 1973

The actual case was filed in 1969, by Norma McCorvey, who took the legal pseudonym "Jane Roe" to protect her identity at the time. McCorvey became pregnant with her third child at the time and decided she wanted to have an abortion, but she was living in Texas, where abortions are illegal except in the case where the pregnancy threatens the life of the mother. Her attorneys filed a lawsuit on her behalf in the US federal court against her local district's attorney, Henry Wade, alleging that Texas' abortion laws were unconstitutional. 

The three judge panel of the US District Court for the Northern District of Texas ruled in favor of Ms. McCorvey and declared the abortion law unconstitutional. Wade and his team immediately appealed this decision in the Supreme Court of the United States. 

On January 22, 1973, the Supreme Court issued a 7-2 decision that the "Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental right to privacy, which protects a pregnant woman's right to abortion". (Wikipedia) The Court however noted that the "right to abortion was not absolute and must be balanced against the government's interests in protecting women's health and prenatal life". (Wikipedia)

To resolve these two competing interests the rights of the mother to health/life and the life of the child the Court came up with this solution:

They developed a trimester timetable in evaluating the viability of the life of the child:

• Within the first trimester (first 3 months), state governments could not regulate abortion, except that the abortion be done by a licensed physician 
• Within the second trimester (up to 6 month mark) governments could now regulate the procedure but only for the purpose of protecting the mother's health and in regard to fetal life. 
• Within the third trimester (up to 9 months), also taking into account the last few week of the second trimester, governments properly regulate and even prohibit abortions, providing that their laws allowed the exception of cases where the mother's health and/or life was at risk.  

Of note, the Supreme Court of the day, classified abortion rights as "fundamental", which required the courts to evaluate any challenge to the abortion laws with "strict scrutiny", a standard that is the highest upheld by US courts concerning judicial review.

So what happened today?

The law was overturned. A panel of nine (9) Supreme Court Justices reviewed the Roe v. Wade ruling and found that it was unconstitutional. 

Writing on behalf of the majority in favor of the ruling, Justice Samuel Alito said that the 1973 ruling and other similar court decisions which buttressed Roe v. Wade, were "egregiously wrong" and asserted that the arguments were "exceptionally weak" and so "damaging" they could be considered "an abuse of judicial authority".  (Totenberg, 2022)

The ratio in this decision was 6-3, with Justice Samuel Alito, Justice Brett Kavanaugh, Justice Amy Coney Barrett, as well as Chief Justice Roberts, and Justices Clarence Thomas and Neil Gorsuch in favor of overruling the law. 

The 78 page document/review cast down the claim of the previous ruling (1973) which stated a woman's right of privacy could be upheld under the 14th Amendment. Instead, Justice Alito asserted that this claim could not be made to defend abortion as a right to privacy, as there "... is no inherent right to privacy or personal autonomy in various provisions of the Constitution". (Totenberg, 2022)

In fact, in his writings, Justice Alito alluded to the 1992 case of Planned Parenthood v. Casey, where in that instance the Justices who presided over the case though siding with Planned Parenthood in upholding Roe, did concede that Roe v. Wade and other court rulings could not be relied upon as a solid defense since "contraception could prevent almost all unplanned pregnancies". (Totenberg, 2022)

Mississippi Law

The ruling does not completely stop women from having abortions however, as the states have the discretion to pass and/or uphold local legislation making it legal in their jurisdiction. No doubt though, several states such as Mississippi, which triggered this current review on "abortion rights" with the stricter laws they enacted in 2018, may seek to ban or put in tougher laws to restrict the procedure. The Mississippi Abortion Law makes abortion illegal after 15 weeks, two (2) months earlier than the limit set by Roe v. Wade. 

Here is the key phrase:  

"...a person shall not intentionally or knowingly perform...or induce an abortion of an unborn human being if the probable gestational age of the human being has been determined to be greater than fifteen (15) weeks..."

Most experts deem a fetus viable at about 24 weeks. The legality of the Act was challenged in federal court therefore blocking the enforcement of the law. The case was first heard in December 2021, by the Supreme Court, and now, here we are. 

 

References:

1. Wikipedia. Roe v. Wade, Last updated 24 June 2022, https://en.wikipedia.org/wiki/Roe_v._Wade
2. Nina Totenberg. Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades, Special Series: Reproductive Rights in America, NPR News, published 24 June, 2022. 2022, https://www.npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn
3. Viable - Medical experts say a pregnancy is viable where the baby has reached a stage of development where after it is born, it can reasonably survive outside of the womb.

What do you think folks, did the Justices of the US Supreme Court get it right this time or should the previous ruling of Roe v. Wade been upheld?

Please leave a comment below.