The US Supreme Court voted to strike down the nationwide legal right to abortion on Friday, paving the way for individual states to heavily restrict or even ban the procedure.
It was previously protected by Roe v Wade, a landmark ruling in 1973, which allowed abortions performed before a foetus would be viable outside the womb – between 24 and 28 weeks of pregnancy.
The 6-3 decision to override Roe v Wade, which has led to the immediate recriminalisation of abortion in nearly half of US states, came in large part thanks to three right-wing justices installed by former US president Donald Trump, whose nominees to the court were vetted by ultra-conservative lobbying groups.
Here’s what you need to know.
What is Roe vs Wade?
In 1969, a 25-year-old single woman named Norma McCorvey became pregnant in Texas. She did not wish to have the baby, but the state forbade abortion on constitutional grounds, except in cases where the mother’s life was at risk.
Supported by lawyers Sarah Weddington and Linda Coffee, she filed a lawsuit under the the pseudonym “Jane Roe” on behalf of herself and others to challenge Texas’ abortion laws. Her case was rejected, forcing her to give birth.
She appealed the ruling, ultimately bringing her case to the US Supreme Court, where it was heard alongside that of a 20-year-old Georgia woman, Sandra Bensing. Lawyers argued that the abortion laws of Texas and Georgia were unconstitutional as they infringed on a woman’s right to privacy.
The court ruled that governments lack the power to prohibit abortions by a vote of seven to two, judging that a woman’s right to choose was protected under the constitution.
That ruling did not find that the right to privacy was absolute, decreeing that a balancing test must be put in place tying state regulation of abortion to the three trimesters of pregnancy.
- During the first trimester, the choice to end a pregnancy is entirely up to the woman.
- Throughout the second trimester, governments can regulate abortion but cannot ban it.
- In the third trimester, the state can prohibit abortion to protect a foetus that could survive on its own outside the womb, unless a woman’s health is in danger.
The 1992 case of Planned Parenthood vs Casey upheld the right to have an abortion established in Roe but allowed states to pass more restrictions, as long as they did not pose an “undue burden”.
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Why was Roe vs Wade overturned?
Roe vs Wade has been reconsidered in light of another case, Dobbs vs Jackson Women’s Health Organisation, a challenge to Mississippi’s 2018 Gestational Age Act, which banned abortions after 15 weeks with exceptions only for medical emergencies or foetal abnormalities.
Federal courts stated that the law violated 24-week point of viability, established in Roe vs Wade. Mississippi state asked the Supreme Court to hear the case, which limited itself to the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional”.
A 98-page leaked draft majority opinion on the case was published by Politico earlier this year.
Writing in the document dated 10 February, Justice Samuel Alito said “Roe was egregiously wrong from the start”, before stating that the decision on whether to ban it or not should be returned to individual states.
The final decision, made public last week, was significantly similar to the leaked draft. The court’s 6-3 decision on Dobbs upheld the Republican-backed Mississippi law banning abortion after 15 weeks of pregnancy.
The ruling found that the constitution does not expressly or implicitly protect the right to choose abortion. It said: “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”.
Samuel Alito wrote that “abortion couldn’t be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law.”
The finding that there is no constitutional right to abortion allows individual states to heavily regulate or outright ban the procedure.
Thirteen states have already passed so-called trigger laws to automatically outlaw abortion in the aftermath of Friday’s ruling. They are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
A total of 26 states are certain or likely to ban abortion, which would cut off about 36 million women of reproductive age from accessing the service.
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