On 3rd May 2022, the website Politico published a leaked draft of the majority opinion in Dobbs , where the US state of Mississippi was challenging the validity of Roe v Wade, which established the US women and other pregnant people’s Constitutional right to abortion up until viability. The draft majority opinion overruled Roe. Although it is not the final draft, it made it very likely that the Supreme Court of the United States will deny the right to abortion and return the issue back to state legislatures, many of which are prepared to extremely limit abortion once the Court decide in their favour.
Roe, Casey, and Dobbs
Before the passing of Roe in 1973, almost all US states banned abortion except in extremely limited circumstances, such as when the pregnant women’s life or health was endangered or when rape occurred. It was very unclear to medical professionals what endangering life or health meant legally, and rape was, and still is, notoriously hard to establish. Roe broke new ground by establishing a Constitutional right to abortion up until the third trimester, when foetuses might survive outside the womb. This right stemmed from the Constitutional right to privacy, which in turn originated from the 14th Amendment to the US Constitution that prevented states from unduly restricting citizens’ rights, and which had been found in other cases that protected the US citizens’ right to use contraceptives and marry freely. Before the second trimester, states were prohibited from regulating abortion at all, and states were only allowed to regulate abortion to preserve women and other pregnant people’s health before the third trimester. It was therefore a landmark decision that protected a fundamental human right of women and other pregnant persons that had long been ignored in history.
After almost two decades of controversy, the Court revisited Roe in Casey. Despite acute social and state pressures, the Court decided to uphold Roe’s “essential holding,” namely that women and other pregnant people had the right to make the ultimate decision regarding their own abortion until viability, which was already possible at approximately 23 or 24 weeks. However, the Court rejected the trimester framework in Roe as it thought the states had substantial interest in promoting and protecting life, and instead ruled that abortion restrictions would not be unconstitutional if it did not constitute an “undue burden” on women and other pregnant people’s right to abortion. As a result of this ruling, restrictive measures like parental notification or consent for minors, mandatory waiting periods or counselling, and burdensome requirements for abortion providers have made it all but impossible for many women and pregnant people in conservative states to obtain an abortion. Casey preserved Roe but made the idea of a right to abortion very hollow.
The draft majority opinion of Dobbs, if adopted, would sound the death knell of this already fragile right, and render it a pawn in state party politics. It claims that the right to abortion does not exist in the text of the US Constitution and is not rooted in the US history and tradition. It disparages Roe as weak and unworthy of following despite it being a 49-year long precedent and overturns it. If adopted, states would be free to allow or prohibit abortion completely as they wish, and their legislation need only satisfy the “rationality” test, which could be met by reasons like “mitigation of foetal pain” and “elimination of particularly gruesome or barbaric medical procedures” typically used to justify anti-abortion legislation.
Implications for Human Rights of Women and Other Pregnant Persons
The draft majority opinion in Dobbs poses a great danger to women and other pregnant persons’ health and safety. Firstly, in states with severe abortion restrictions, women and other pregnant people are already resorting to unsafe abortion methods like black market abortion pills and self-administered abortions , including poison ingestion and intentional trauma . Such phenomena will be more common if abortion rights are denied. The threat of prosecution will also deter these women and pregnant people from seeking life-saving care when complications develop. Secondly, the mental health of pregnant people will be severely damaged having to endure pregnancy and its attendant health effects, childbirth, and the pressure of raising a child, which will be especially inhumane for sexual assault victims . The US already has the highest maternal mortality rate in developed countries, yet maternal mortality could increase by a further 21% because of abortion bans, as US Centers for Disease Control and Prevention reveals mortality from childbirth is 50 to 130 times higher than that of abortion . Lastly, under the threat of prosecution and lawsuits, medical professionals will be reluctant to carry out life-saving abortions due to lack of clarity about the meaning of a “legal” abortion. The resulting lack of abortion training will affect the availability of surgeons able to carry out life-saving abortions that fall under the exceptions, and the quality of care in miscarriage management . Overall, overturning Roe would result in a health and safety catastrophe that will affect all women and other people of reproductive age.
It will also result in great legal injustice apart from the denial of abortion right itself. Patients who have bleeding in pregnancy or suffer miscarriages will be vulnerable to criminal prosecution and police reporting, including by medical staff. This is because spontaneous miscarriages and self-managed medical abortions are almost indistinguishable. Moreover, women, people and medical professionals involved in other medical situations such as ectopic pregnancies, pre-viability rupture of membranes, multifetal pregnancies and in vitro fertilisation face the risk of prosecution and lawsuits as well, as these situations all involve the possibility of removing a foetus. Therefore, such abortion bans will persecute women and pregnant people who were not intended to be covered by legislation.
Ethnic minority women and pregnant people living in poverty will be hit hardest by abortion bans. Factors such as inequality in access to contraceptives and racial wealth gaps mean that Black women are more than three times more likely than white women to need an abortion. COVID-19 has exacerbated the racial wealth gap and financial pressures on Black families, particularly in conservative states, limiting options for Black women such as cross-state trips to get an abortion. Healthcare inequalities and institutional racism contribute to high mortality rates among Black women and pregnant people that are comparable to developing countries . Abortion bans could increase this mortality rate by 33 percent for Black pregnant people compared to 13 percent for white people . In terms of wealth, half of Americans live under the federal poverty level and another 25 percent have incomes up to twice that level, all of which may be unable to travel out of states to obtain abortion. If forced to give birth, the costs of childbearing will increase their poverty level as well, especially if their child has disabilities or complex medical needs. Moreover, they stand at risk of losing wages or getting fired if they make long trips to obtain abortions , and medical staff disproportionately report Black women and pregnant people and those of low socio-economic status to the police. Criminal prosecutions carry heavy fines, for example in Oklahoma the current fine is $100,000 . Lastly, children and teens risk domestic violence if they are found to be pregnant, and they are especially likely to lack the resources to travel out of state. Parents will be greatly affected as well, as their travel will be impacted by childcare needs . The implications of abortion bans on social inequality, therefore, are profound.
One possible solution to this problem is political uphill fights. Democrats are pushing for Roe to be codified in federal law and calling for reforms to the Supreme Court with term limits . People will push for state legislatures to liberalise abortion laws. However, such political measures face profound difficulties, as evidenced by the Democrat’s failure to persuade the Senate to pass the abortion bill in May . The political system has been dominated by the Republicans at all levels, and measures like gerrymandering, voter suppression and intimidation through the proposed requirement of voting IDs will make it harder for people to influence politics democratically. Moreover, the fight for abortion was decades of uphill battles before Roe, and it is likely to be so after Dobbs as well . All of these mean political measures have their innate limitations.
Another possibility is through the healthcare system. In states where abortion is illegal, clinicians might be able to offer referrals, information about availability in out-of-state clinics, and pre-abortion health checks like ultrasound, blood testing and health consultations. Insurers could also decide to cover expenses from out-of-state abortions . However, it is likely the states will foresee such possibilities and make them liable to lawsuits, utilising the force of pro-life protestors and activists to “monitor” them. Therefore, there might be limits on what medical professionals can do according to their conscience.
Lastly, businesses have been urged to shoulder their social responsibilities in a democratic society, due to their innate financial privileges and ability to represent a large number of people. They have already been under pressure to speak and act ethically in multiple social issues and find it increasingly harder to stay neutral or continue trading with questionable businesses. Disney, for example, spoke out after a revolt among their employees. However, it is likely these companies and corporations will be targeted by political pressure. Disney has been stripped of some special rights to manage their megaresort after they spoke out against the Florida “Don’t Say Gay” bill. Activists like Vivek Ramaswamy are investing in attacks on businesses who spoke out and pressuring businesses to stay out of politics. All these mean delicate balancing exercises for businesses and make it harder for them to take a stand for women and pregnant people’s welfare .
The leaked draft of Dobbs, if adopted as final, will overturn Roe and Casey and decades of precedents following them. This would endanger women and other pregnant people’s health and safety, result in criminal and civil injustices, and greatly obstruct endeavours to achieve equality. Political, medical and business solutions are possible, but their inhere shortages means urgent rethinking is required to counter the devastating effects of abortion bans.
By Haocheng Fang, Thrive Research Hub Member | LinkedIn