Friday, January 28, 2022

Will Roe v Wade be reversed, and what will that mean? American abortion debate explained

Last week, the US Supreme Court heard oral arguments in a case that poses the most significant threat to abortion rights in America in decades.

The case, Dobbs v. Jackson Women’s Health Organization, focused on a 2018 Mississippi law that bans abortions after 15 weeks except in “medical emergencies or serious fetal abnormalities.”

It is part of a wave of state abortion restrictions passed since the 2016 US presidential election targeting Roe v Wade, a landmark 1973 Supreme Court decision guaranteeing abortion as a constitutional right.

So, what is this Mississippi challenge based on and could it eventually reverse Roe v Wade?

Two issues at stake in the Mississippi case

The Supreme Court, which is likely not to decide the case until mid-2222, is facing two major issues.

One of the central elements of the cry is that state and federal governments cannot ban abortion before viability, at which point a fetus can theoretically survive outside a pregnant person’s body (around 23–24 weeks). defined as the womb).

The Mississippi ban is well below the viability limit. As such, the Supreme Court is now considering whether all pre-feasibility restrictions on elective abortion are unconstitutional.



Read more: Supreme Court signs change on abortion – but will it end the row or leave it to states to decide when ‘individuality’ happens?


The second issue is respect for legal precedent. Since the Supreme Court was established in 1789, it has overturned its constitutional precedents only 145 times, or 0.5% of cases.

Roe v Wade, decided 48 years ago, is sometimes described as a “super precedent”, as the Supreme Court has repeatedly affirmed.

Constitutional scholar Michael Gerhardt has defined “super precedent” as:

Constitutional decisions in which public institutions have invested heavily, relied on time and again, and consistently supported over a significant period of time.

Conservatives, including many in the Supreme Court, refuse to include Roe v Wade in this definition.

Why does Court’s makeup matter now?

In oral arguments, Mississippi lawyers invited the Supreme Court to use the case to overturn Roe v Wade. Anti-abortion advocates and activists are optimistic that their arguments will fall on receptive ears.

In 2016, Donald Trump, like every Republican presidential candidate dating to Ronald Reagan, campaigned on the promise of appointing “pro-life judges” to the Supreme Court.

Despite serving only one term in office, Trump was able to deliver. He appointed Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Connie Barrett in 2020, to fill Supreme Court vacancies. Conservatives now have a 6-3 majority on the bench.

Donald Trump and Amy Connie Barrett after her nomination was confirmed by the Senate last October.
Patrick Semansky / AP

While conservative Chief Justice John Roberts is not a supporter of abortion rights, he has been a swing vote on many issues and has an established interest in protecting the reputation of the Supreme Court. However, after Barrett was sworn in, conservatives were no longer required to appeal to him to form a majority.

And while Kavanaugh claimed in his confirmation hearing that Roe v Wade was “settled as a precedent of the Supreme Court,” in oral arguments last week he read from a list of Supreme Court cases that overturned the precedent. .



Read more: Who is US Supreme Court nominee Brett Kavanaugh, and what does he have to say on abortion?


How states have reduced access to abortion

Abortion rights have survived serious attacks in the past.

In Planned Parenthood v. Casey (1992), three appointees of Republican presidents sided with two liberal justices to retain Roe v Wade, arguing that “liberty finds no refuge in the jurisprudence of doubt.”

That decision reiterated the feasibility limit for legal abortion, but allowed states to pass restrictions as long as they did not place an “undue burden” on the right to abortion.

Since the 1990s, anti-abortion lawmakers have pushed to find the limits of “unfair burden”, chasing laws and test cases that reduce access to abortion.

Many states now mandate 24- or 72-hour waiting periods, ultrasounds, parental consent requirements for teens, and repeat counseling for anti-abortion claims.

Since 2010, conservative states have passed hundreds of targeted regulation of abortion provision (TRAP) laws, which place prohibitive and medically unnecessary restrictions on doctors and clinics providing abortion care.

This anti-abortion strategy to drive away Roe v Wade has been extraordinarily successful.

Between 2011-16, more than 160 abortion providers discontinued or discontinued offering termination, the highest rate of closure since 1973. One remaining abortion clinic is in operation in several states, including Mississippi.

New Strategy: More Offensive Challenges for Rowe Weed

After Trump’s victory, opponents of abortion shifted to a more aggressive strategy of directly challenging Roe v Wade.

Most of these recent laws, such as Alabama’s 2019 near-complete abortion ban, have been blocked by lower courts.

A new Texas law banning abortion after six weeks is currently in effect while the Supreme Court considers whether its unique enforcement mechanism, which allows private citizens to sue anyone Looks that have broken the law can be challenged in the courts.



Read more: Jim Crow strategy reincarnated in Texas abortion law, appointing citizens to enforce legally questionable provisions


And the partisan makeup of the current Supreme Court makes it almost certain that Mississippi’s law will stand.

It is not clear whether the judges will limit themselves to the question of embryo viability or whether they will completely reverse Roe v Wade, allowing states to ban abortions at will.

If the Supreme Court allows states to ban abortions before viability, it will have a significant impact on the small number of pregnant people who have abortions in the second trimester.

Typically, these people have either received a devastating medical diagnosis or have complex personal conditions, including domestic violence, mental illness, and/or drug addiction. These patients as well as the doctors providing this care are highly stigmatized.

Long term effects of reversing Roe v Weed

If Roe v Wade is reversed and abortion rights are returned to the states, access to abortion would effectively be a geographic lottery.

Twenty-two states have laws that can be used to ban or severely restrict abortion, while 15 states and the District of Columbia have laws that protect abortion rights.

Abortion is a routine, common type of reproductive health care. About one in four American women will miscarry before the age of 45.

Despite political controversy and polarizing rhetoric, this year’s poll indicated that 80% of Americans support abortion in all or most cases, and at least 60% support Roe v Wade.

However, while abortion is common, three-quarters of American abortion patients are low-income and more than half are people of color. They already face significant financial and logistical barriers to accessing this essential health care.

If Roe v Wade is reversed, abortion will be safe and legally accessible to those who can afford it. The disastrous consequences of such a decision would be mainly on the shoulders of those who are least able to bear it.

This article is republished from – The Conversation – Read the – original article.

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