Roe v Wade, Then and Now

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In a draft opinion leaked early in May 2022, conservative Justice Samuel Alito has fervently denounced Roe v Wade, an opinion presumably shared by four other justices. The monumental case brought to the Supreme Court in January 1973 has enshrined women’s reproductive rights and the right to an abortion for nearly fifty years. Now, it is under threat.

At the time of the landmark case, abortion had only been legal in one state, New York, for three years. Being the sole place to end unwanted pregnancies, it rapidly became the abortion capital of the nation, with hundreds of thousands of women flocking from across the US. This posed a problem for lawmakers, especially those in the northeast, who could outlaw abortion in their own states but had no basis to stop women from travelling to New York. This, coupled with the growing quarrel over women’s reproductive rights, ensured abortion would slowly begin to seep into the nationwide discourse.

In 1970, two newly-minted lawyers were looking to achieve the Herculean task of challenging the abortion laws held in one of the most conservative states in the country, Texas. Meanwhile, in Dallas, a young housecleaner with nothing more than a high school degree and an increasing difficulty in making rent discovered she was pregnant. This woman, Norma McCorvey, given the pseudonym ‘Jane Roe’, was now pregnant for the third time and desperate for a way to terminate her pregnancy.

McCorvey, a young, lower-class, white woman was precisely the plaintiff that the lawyers, Sarah Weddington and Linda Coffee, were looking for. She was easily empathised with by both the presiding judges and also the American public, who soon became hugely invested in the outcome of the case. The attorneys, now equipped with the perfect plaintiff, filed a suit with the U.S. District Court for the Northern District of Texas against Henry Wade, the district attorney of Dallas. Weddington and Coffee argued that the Texas law, in which abortion was only permissible if the mother’s life was at risk, was not only unconstitutional but was cruel to women unable to travel for abortions, who as a result were left no choice but to attempt dangerous ‘back-alley’ abortions, or else bring up children that were unwanted or that they were unable to support.

On 17 June, the panel of three district court judges heard the case of Weddington and Coffee and ruled in their favour. The court agreed that the prohibition of abortion was a violation of the constitutional right to privacy upheld by the Ninth Amendment. However, while the court established the unlawful nature of the state’s abortion ban, it refused to grant an injunction, meaning the law continued to be in effect throughout Texas, and doctors who performed abortions would continue to be prosecuted by the state.

As a result, the case was appealed to the United States Supreme Court, the highest judicial body in the nation, to give a decision on the matter. On 13 December, 1971, the court heard plaintiffs Weddington and Coffee and the defendant of the state of Texas, Jay Floyd, give their initial oral arguments. A year later, after a series of delays, re-arguments and postponements, the court finally delivered a 7-2 ruling in favour of ‘Jane Roe’, on the grounds that a woman has the right to obtain an abortion free of legislative restriction, and that the prohibiting Texas statute was unconstitutional.

Coupled with this decision came the opinion of the court, the document written by one of the justices which serves as the foundations and reasoning for the given ruling. In this case, Justice Blackmun, one of the more liberal judges on the bench, was assigned to write the majority opinion of the court. In this opinion Justice Blackmun asserts that the ‘Right to Privacy’ found in the Ninth Amendment – and upheld by the Fourteenth Amendment – “is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”

He stresses the necessity of balancing the personal liberty endowed to all citizens and the interests of the government in protecting both a mother and her foetus – to this end, the opinion allowed for states to impose restrictions as they saw fit, without impeding on the reasonable boundaries of a legal abortion set forth in the court’s opinion. However, Blackmun concludes that, fundamentally, the outlaw of abortion violates a woman’s right to privacy by forcing physical, mental and economic burdens upon her, and thus was unconstitutional. This view of the court, and the ruling that cemented it, has been upheld by the Supreme Court for nearly 50 years.

A recent opinion draft promises to upend this decision. On 5 May, Politico released a leaked draft of an opinion written by Justice Alito, a conservative judge appointed by President Bush. He gives a repudiation of not just Roe, but the very legal foundations on which it rests. Alito contends that the court’s 1973 ruling was unfounded, flawed and “egregiously wrong”, and that the right to abortion was simply concocted by Blackmun and had no basis in the constitution. Alito also disputed the right of the Supreme Court to make such judgements, asserting that Roe stripped elected officials of their ability, and responsibility, to decide whether abortion should be permitted in their individual states.

While the leaked document is only a draft, meaning the opinion has not been officially adopted by any other justices, the views of the bench are clear, with more justices opposing Roe than supporting it. Many states have trigger laws in place which, should the Alito opinion be adopted by the majority of the Supreme Court, as expected, would automatically ban abortion, with other states likely to assume the pro-life stance soon after. If Roe v Wade is overturned in the Mississippi case, women in an estimated 27 states will lose the right to obtain an abortion.

As a result, the court’s long-held reputation of non-partisanship is beginning to fall apart. Since 1954, the court has worked for the expansion of rights: for conservatives, the broadening of freedoms for corporations; for liberals, the increase in social freedoms and equality. Now, a foundational liberal freedom is being upended, fuelling the descent further into the polarisation already plaguing American political culture. And while those on the right might cheer the verdict, they will recognise just as well as those on the left the implications the Supreme Court’s anticipated decision carries.

Roe is not only the thread by which the woman’s right to abortion hangs; it also holds together the very fabric of political and social legitimacy that the court requires to maintain the dignity of its rulings.

Individual justices have never been regarded, or regarded themselves, as politicians. However, this case has caused a change in attitude towards the justices that signifies the end to the court’s distinctive legitimacy. The American people see the justices as having descended from officials upholding the constitution to merely politicians in extravagant robes; the court they represent is no longer an apolitical body but just the latest political battleground. As unelected officials, they lack any credibility in upholding the principles of the American people, since they are not elected into power by the American people. Justice Alito argues this verdict, and his opinion, intends to withdraw the Supreme Court from politics surrounding abortion, handing the decision back to elected officials. However, the effects of this verdict make clear its purpose.

The legacy of Roe v Wade has been, for half a century, a triumph of liberty. Its impending reversal not only revokes the reproductive rights of millions of women, it also guarantees that the trust between the American people and the few men and women appointed to uphold their rights will be irreversibly shattered, leaving a legacy just as great as the original decision.