Roe v Wade
Did the US Supreme Court Violate a Series of Human Rights?
The short answer to this question would be YES. However, the Justices of the United States (US) Supreme Court who voted to overrule Roe v Wade are of the opinion that their decision protects the ultimate human right – the right to life.
This article aims to scrutinise the infamous judgement of Dobbs v Jackson Women’s Health Clinic, which ultimately overturned the fundamental right to abortion in the US. The ground-breaking decision was the first time that a fundamental right was overturned in the country.
What Roe v Wade did was to make abortion a fundamental right in a time where abortion was illegal in 30 states. In fact, abortion was only legal in 16 states under particular circumstances, such as rape, incest, and if there was a threat to the health of the mother. Stricter restrictions were imposed on access to legal abortion in various other states. Indeed, New York was the only state in which abortions were legally allowed under any circumstances. In 1973, the US Supreme Court ruled that the US Constitution protects a woman’s ability to decide whether or not to terminate her pregnancy in its judgement in Roe v Wade. As a result, all states were prohibited from banning abortion in the first twelve weeks.
On June 27th, 2022, the US Supreme Court overruled the landmark decision in Roe v Wade with a majority vote of five-to-four. In the judgement, the majority expressed that their justification were based upon the absence of abortion rights in the initial Constitution of the US, dating back to the 18th century. On the other hand, the dissenting judgement emphasised on the harms that the illegalisation of abortion rights would have on the physical and mental health of women in the modern context.
Whether a Constitution, in the 21st century, in itself is sufficient enough to determine the rights and freedoms of the people is a matter for debate. Bearing in mind that the most recent significant update in the US Constitution was when the 26th Amendment changed the voting age to 18 around 50 years ago; well before the arrival of personal computers and the use of the internet.
Where the Justices stand politically is clear from the disparity between the majority and minority judgements. Although Justice Amy Coney Barrett insisted that the institution must be nonpartisan in a remark delivered at the University of Louisville in September 2021, a glance through the biographies of the Justices would be enough to understand their rationale behind their decisions to vote for or against the overturning of Roe v Wade.
All five Justices who voted in favour of the abortion ban had been appointed by a Republican President, three of which by Donald Trump in the span of three years. In addition, records show that four of these Justices were appointed by presidents who lost the popular vote in their second term elections. This fact is reflected in the public survey on Americans’ opinions on the US Supreme Court. In September 2021, only 40% of Americans approved the appointed Justices to the Supreme Court, while 53% said they disapproved of them, and 6% remained neutral.
This survey comes exactly a year after the appointment of Justice Amy Coney Barrett by former US President Donald Trump, which Princeton University historian Sean Wilentz said was a ‘right-wing firewall’ against a country evolving electorally away from the Republican Party. The uncommonly close dates may indicate support for this statement, considering that Justice Amy Coney Barrett was nominated at the end of September, and the election was held in the beginning of November of the same year. Indeed, Amy Coney Barrett is the only Justice currently holding a place in the US Supreme Court whose period of nomination was less than six weeks, not to say that her nomination came at a time of the COVID-19 crisis in the US. The then-Senator Kamala Harris criticised this, insisting that the Senate should instead focus on how overturning the Affordable Care Act would impact the American people.
Moreover, the Justices who voted for the abortion ban are from a white ethnic background, with the exception of Clarence Thomas, one of the two African-American Justices currently holding a place in the US Supreme Court. However, his vote in favour of the abortion ban does not come as a suprise considering his background as a student in the College of the Holy Cross, a private college describing its identity as Jesuit and Christian. Suprisngly, Chief Justice John G. Roberts Jr. who was appointed by Republican President George W. Bush is amongst those who voted against the abortion ban. His reasoning, however, had little to do with abortion itself, and more with the principle of overturning a fundamental law.
The rationale behind the legalisation of abortion in Roe v Wade was the right of privacy of the mother to obtain an abortion. However, this is not the only human right that the abortion ban will be breaching. Following the 2022 decision, various media outlets turned their attention towards vulnerable individuals being left under inhuman conditions due to the ban. A 10-year-old rape victim was let down by the new law after having to travel from Ohio, her home state, to Indiana in order to get an abortion.
But what if she did not have the means to travel? Would she, or her family, choose to end the pregnancy through illegal ways? Think of the dangers an illegal termination would pose to a woman's physical and mental wellbeing. Indeed, the stricter the rules get around abortion, the more illegal ways of ending a pregnancy will be created. This poses a great risk to health, as unwanted pregnancies will no longer be eligible for abortions performed by professionals. Ultimately, this imposes a big threat to the human right to health.
General Comment No. 22 of Article 12 of the International Covenant on Economic, Social, and Cultural Rights of the United Nations highlights that ‘the denial of abortion often leads to maternal mortality’, which ‘constitutes a violation of the right to life or security, and in certain circumstances can amount to torture or cruel, inhuman or degrading treatment’. However, although the US is a signatory state on this Treaty, they are yet to ratify it. This highlights the disappointing fact that the US has a history of denying, or not supporting, the right to health.
