The Supreme Court of the United States has recently overturned the decades-old Roe v. Wade judgment protecting the right to abortion on a federal level. The final decision in the Dobbs v. Jackson Women’s Health Organization has created an uproar and resulted in international protests and media attention from both sides of the spectrum. While some are celebrating the salvation of the lives of unborn babies, others are mourning the lives yet to be lost. The lives of pregnant people from various backgrounds who might die as a result of unwanted pregnancy or an illegal unsafe abortion.
The controversial decision dealt with the constitutionality of the Mississippi state law banning almost all abortion procedures after 15th week of pregnancy. This law went against the Supreme Court precedents in Roe v. Wade and Planned Parenthood v. Casey that established the right to abortion before viability of the fetus as a constitutionally protected right. The clear discrepancy between the state law and the precedent, along with the ideological shift of the Supreme Court made the Dobbs case a perfect vehicle for the social conservatives to challenge the decades-old judgment.
Ultimately, they succeeded, and on 24th June 2022 the Supreme Court, in its majority opinion written by Justice Samuel Alito and joined by five of the justices, held that the right to abortion was not protected under the Constitution and that “the authority to regulate abortion is returned to the people and their elected representatives.”
The sentiment prescribed in the last sentence is intertwined in the entirety of the majority opinion. It is this repeated sentiment that leads me to believe that the Dobbs v. Jackson Women’s Health Organization case does not only reflect the debate on moral and religious issues. It is also part of a very real legal debate on the role of the constitutional courts and the judiciary in protecting the rights of minorities, the checks and balances within the state and the question of how well our representatives reflect the society or rather, in the words of the Court, “the people”.
The storm before the storm
While the judgment might have come as a surprise to some, to many it was an inevitable (albeit unwelcome) climax of the years-long battle of the conservatives to overrule the Roe and Casey decisions. The opportunity to overturn the judgment began to form with the ideological shift of the Supreme Court after the appointment of the conservative judges Kavanaugh and Gorsuch by former President Donald Trump. They replaced the liberal Judge Stephen Breyer and the “swing vote” Anthony Kennedy, ending the brief interregnum of the liberals, with four liberal judges to five conservatives, and one of them being a swing vote. As a response, many republican-majority states began passing restrictive laws on abortion in the hope of providing a vehicle to open the issue before the Supreme Court.
After the unfortunate passing of Justice Ruth Baden Ginsburg in 2020, she was quickly replaced by conservative Justice Amy Coney Barrett who was nominated by the president and elected by the Senate just a few days before the presidential elections. This meant that there was now a 6-3 conservative majority in the Roberts Court, making the possibility to overturn Roe and Casey more real than ever.
The months leading up to the judgment were no less turbulent. In an unprecedented situation, the draft opinion by Justice Samuel Alito was leaked to the Politico website in early May 2022. This has motivated the pro-abortion rights activists and Democrats to push for the Senate to pass the Women's Health Protection Act codifying the abortion rights established by Roe and Casey. Unfortunately, their attempt was unsuccessful and the fear that the leaked draft created in some parts of the society has proven itself to be founded. The Supreme Court proclaimed its position not to be swayed by the public opinion and delivered a final judgment with only few and non-fundamental changes.
Deeply rooted in the nation’s history… depending on the narrative
The anticipation of the judgment made no difference in the fact that the Majority opinion delivered by the Supreme Court was groundbreaking. It became a landmark by overthrowing decades-old Roe and Casey lines of jurisprudence.
But why was the Roe v. Wade line of case-law controversial in the first place? Moral questions aside, the judgment confirms the right that was not expressly stated by the United States Constitution. Justice Alito who drafted the Majority opinion in the present case explains that the United States Constitution makes no reference to the right to abortion nor is the right expressly stated in any constitutional provision. Therefore, he turns to the Glucksberg test to find out if it can be constitutionally protected.
The Glucksberg test allows certain unenumerated rights to be guaranteed under the equal protection of the Fourteenth Amendment. The criterion is that these rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
According to the Majority, the right to abortion fails to pass this test, citing historians who point out the criminalization of the after-quickening abortion  in the times before the Fourteenth Amendment, and the generally unfavorable legal standing of the right from the historical point of view.
The legal historian Mary Ziegler points out that the historical narrative is not quite as black-and-white as the Majority suggests. Many of the rules prohibiting abortion stem from sexism and racism rather than the noble ideal of protecting the human fetus. To see the protection of the population of the white race, or the traditional role of a woman as the child-bearer rather than a professional in her own right, as a deeply rooted national tradition, is very problematic.
She concludes that “Justice Alito was smart to press that point because it's hard to make the case that states at the time the 14th Amendment was written viewed abortion as a fundamental right, much as they wouldn't have viewed the right to attend an integrated school or the right to marry a partner of the same sex or certainly the right to use birth control.”
Bodily autonomy as a luxury
Louis Vuitton, Michelin star restaurants and safe abortion. What do these three have in common? It could be argued that as of now, in many states including Brasil, Poland and the United States, all three are a privilege only granted to the rich.
In Poland, where the Constitutional Tribunal declared near-total abortion ban, 34 thousand women were known to have sought abortions illegally or abroad by the following year. Illegal abortions bring higher risks as they are performed in unhygienic conditions or by under-qualified staff. The slogan „You cannot ban abortions, you can only ban safe abortions“ rings very true. The NGOs also report that many illegal abortions are performed abroad. For example, in Germany, Austria or the Czech Republic. The travel costs and the costs of the procedure divide women by their wealth in this sad predicament into those more likely to die or suffer and those who will not.
The same applies to Brazil, a country in which abortion is outlawed with the exception of rape or danger to one’s life. In a recent case, a judge was trying to coerce an 11-year-old girl to carry to term a baby that was concieved in rape. A controversial video emerged, where the judge referred to the rapist as a “dad” of the baby and tried to influence the girl to give the fetus a name. While doing so she was misapplying the law, emotionally manipulating a traumatized child and holding her away from her family. In the very same country, the practice is still done at private clinics, where clients are able to pay for the doctor’s expertise and confidentiality.
In Argentina, up until recently, women after miscarriage were being prosecuted, investigated and proclaimed murderers. Now, after a landmark legislation bill legalizing abortion, the largest Latin American country to provide legal abortion became a destination for Brazilian women seeking the procedure. Those that are “fortunate” enough to take out loans or save up for the flight.
The aftermath of the ruling
Looking at the situation in Central and Eastern Europe and Latin America might sadly serve as a magical mirror showing the future for the United States. NGOs and the public warn of the negative effects that the decision may have on women, girls, and pregnant people in the USA.
Because the federal protection no longer applies, abortion is now banned in 10 of the states and in 4 others there are “trigger” laws soon coming to effect. In three other states such prohibitions are blocked for now by the courts, but might come into effect upon their decision. Five other states have restricted abortion only until the gestational limit.
Justice Kavanaugh in his concurring opinion tried to assure that it would still be unconstitutional to prohibit a woman from going to another state to seek an abortion under the right to travel. Even if that assurance turns out to be true, not everyone has savings to cover the costs of travel and accommodation on top of the costs of the procedure.
As the lower classes are less likely to be able to cover such costs, these will be the women, girls and people who will be dying or suffering from physical or mental health issues. The Court is leaving it up to the legislature to decide their fate. Legislative in which women, lower-class and people of color are historically underrepresented. Associate Professor of Law Scott Skinner-Thompson from the University of Colorado said, “The Court has for a long, long time said: Look, if we define liberty only in terms of what was permitted at the time of ratification of the Bill of Rights or the 14th Amendment, then we’re stuck in time. Because in the 18th and 19th centuries, this country was not very free for many, many people — particularly women, particularly people of color.”
Wouldn’t it be ideal for the Court as the guardian of the Constitution to protect the minority from oppression by the majority and thus dim the biggest threat to democracy – the demos – the people?
The Majority decides to do the exact opposite, staying true to their strict constructionism views and criticizing the Court in Roe v. Wade for acting in the role of the legislator. In various instances reiterating that the Supreme Court is returning the authority to the people and their elected representatives. By proclaiming that this particular right is not for the Supreme Court to protect, it leaves groups of people that are under-represented and thus voice-less, also defenseless. The question of the role of the Constitutional Courts and checks and balances and division of power remains unanswered.
To conclude with the powerful quote of the dissenting minority. “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
 The phrase “Roberts Court” refers to the era since 2005 in which the Supreme Court of the United States has been led by the Chief Justice John Roberts.
 The term “quickening” has its roots in the original meaning of the word “quick” that meant to be alive. It referred to the moment in pregnancy when the pregnant woman starts to feel fluttering in her uterus. From a point of view of legal history, it used to be recognized as the start of the individual life of the fetus.
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Illegal abortion poses higher risk to the mother’s health. Keep Abortion Safe, Legal & Accessible, author: Debra Sweet, 27th January 2012, source: Flickr, CC BY 2.0