Roe v Wade: the battle of reproductive rights, power & control

Blog by Lara Jennings| TuneFM Team Member

Roe v Wade was a decision that was handed down in 1973 by the US Supreme Court that declared women had a constitutional right to access abortion. This meant that the many state laws that banned abortions at the time were invalid.

In Roe v Wade, the right to have an abortion was rooted in the nation’s history and necessary for the ordered liberty of the country. Roe v Wade also declared that it was grounded in the right to privacy which was a thread through multiple amendments of the US Constitution.  However, because there were competing interests between the pregnant woman and the interests of the state in the potential life of the foetus, there were limits placed on the right to privacy.

To balance the competing rights, the Supreme Court decided that the first trimester was when the woman had the right to decide. In the second trimester, states could regulate for “preservation and protection of maternal health” and states could outlaw abortions during the third trimester, except in cases involving the health or life of the mother.

Cases since Roe v Wade have upheld a woman’s constitutional right to abortion during the first trimester

, however there were holes being poked in the idea of a constitutional right to abortion with each case and the support for the judgement in Roe v Wade had weakened.  Alongside this weakening of the law, the makeup of the US Supreme Court had changed with three conservative Judges appointed under Trump.

The first abortion rights case heard under the new conservative majority was Dobbs v Jackson Women’s Health Organisation where oral arguments were heard on the 1 December 2022. The judgement was released on Thursday which overturned Roe v Wade, declaring there was no constitutional right to abortion and now allows state governments to criminalise abortions and eliminate abortion access and many Republican governed states have done just that.

So how did the new conservative majority of the US Supreme Court come to the decision that there are no rights for a woman to have an abortion? Firstly, the right to abortion is not expressed in the Constitution, but a right doesn’t necessarily have to be. A right can be obtained if it “is rooted in the Nation’s history and tradition and whether it is an essential component of ordered liberty”, as per the decision in Roe.

The Judges in Dobbs v Jackson acknowledged this. They then go on to say that, prior to Roe v Wade, abortion was a crime. That is the historical view that mattered most to the new conservative supreme court.

This new judgement states that Roe v Wade ignored or misstated the history. But this is factually incorrect.

Roe v Wade took the task of determining whether abortion was rooted in the nation’s history to mean that it needed to consider the legal history of abortions in its entirety. Not just from the point of it being illegal from the 1860s. The Roe v Wade judgement discussed how abortions were an integral part of birth control prior to it being criminalised.

Before criminalisation, the process of obtaining abortions was one that was mainly guided by midwives, nurses and female obstetricians, many of whom were women of colour, until the mid 19th Century.

It wasn’t until the American Medical Association (AMA) (a white male dominated board on a mission to regulate and control medical practices) ran an anti-abortion campaign to criminalise abortions in the 1850s and onwards.

This led to abortions being criminalised throughout the US with varying laws in each of the states. Unfortunately this also attached a stigma to abortions that has been hard to shake ever since. Added to that cocktail were the religious views of conservative Americans who were more than happy to stand up for the rights of an unborn foetus over a woman’s right to choose.

What we have now as a result, is a 50 year old Supreme Court decision that has been completely overturned with the new conservative makeup of judges on the US Supreme Court. It is interesting to note that each of the three new conservative judges appointed by Trump were all asked about their thoughts on Roe v Wade when they were interviewed for their position and they all said at the time that it was set law. No need to be reviewed. Each of these new judges were in the majority who decided to overturn this ‘set’ law.

They have justified their decision to turn back the clock on the basis of historically recent legislation, which was campaigned for by white men who wanted to take down women, especially women of colour, practising medical care. The AMA achieved their goal by turning women who needed specialised care into criminals.

This decision tells me that still, after all these years, being able to maintain power is more important to the powerful and privileged than basic human rights.

If courts can use their power to take away a right that has been held for 50 years, then what is the point of rights?

For the highest court in the US to be able completely dismantle 50 years of law that is rooted in human rights with one case is incredibly concerning. When power trumps people’s rights, we have a big problem. The result is continued structural inequality that keeps the people without power under control.

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