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Dobbs v Jackson: The Death Knell for Women and Pregnant Persons' Human Right to Abortion

On 3rd May 2022, the website Politico published a leaked draft of the majority opinion in Dobbs [1], 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 [2], including poison ingestion and intentional trauma [3]. 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 pregnan