This past January 22, 2023, the United States looked back on 50 years since the Supreme Court of the United States (SCOTUS) issued the famous Roe versus Wade decision. Issued in 1973, the decision established the right for a woman to terminate her pregnancy based on what legal experts call substantive due process. Specifically, this meant that the Due Process Clause of the 14th Amendment of the Constitution of the United States guaranteed a woman’s right to choose within the realm of right to privacy. This was a reaffirmation of the of the same principle applied in a 1965 SCOTUS ruling, Griswold versus Connecticut, which established the right of married couples to use contraception, and in a 1967 SCOTUS ruling, Loving versus Virginia, establishing a right to interracial marriage. Since 1973, the same reasoning has been applied to other SCOTUS cases, such as Obergefell versus Hodges, establishing a right to same sex marriage in 2015. Over the years, abortion rights established in the Roe v. Wade case were chiseled away. This process culminated in June 2022, when the SCOTUS overturned Roe v. Wade in the Dobbs versus Jackson Women’s Health decision. This case involved Mississippi’s Gestational Age Act, written to prohibit all abortions after 15 weeks gestation, with very few exceptions and the SCOTUS decision has meant that individual US states may now prohibit abortion, or restrict it in any way.
Dobbs was a 5-4 decision, whose majority opinion was authored by SCOTUS Associate Justice Samuel Alito, who, as a judge on the Third Circuit Court of Appeals in 1992, voted to uphold a component of a Pennsylvania law requiring women to notify their husbands prior to obtaining an abortion. Whereas many US states now restrict abortion severely, or ban it outright, because of Dobbs, many people feel that the Roe v. Wade decision of 50 years ago was a logical decision that has continued to be the basis of US reproductive law. At the same time, many other people believe that Roe v. Wade, even if not a particularly well-reasoned decision in 1973, should have been upheld based on what legal experts call stare decisis, determination of legal matters based on precedent. This latter group includes SCOTUS Chief Justice John Roberts, a conservative who actually voted to uphold the Mississippi law but did not think the decision should go as far as overturning Roe.
One hint regarding how out-of-tune the SCOTUS overturning of Roe is with society is the extreme mindset of the decision’s author, Justice Alito. Back in 1992, the other two appellate judges of the Third Circuit voted against Alito on the matter of a wife having to notify her husband. Then, when the case reached the SCOTUS, the spousal notification clause was also not upheld. Another major hint is that, since the Dobbs decision last June, various ballot measures and court decisions within highly Republican states have decided in favor of preserving the right to choose. We have explored many of these during our tour through the abortion situation in different US states and territories.
One example is the state of Kansas, whose people voted on August 2, 2022 to keep the right to abortion care protected throughout the state. They did this by voting against a proposed measure that would have amended the state’s constitution, which protects the right to choose, so that it no longer would protect that right. Kansas voters came out on droves to participate in this vote, despite the event being a primary election, which generally draws far fewer voters than a general election. Another example is Alaska, where polling data show that citizens overall believe that women should decide for themselves what to do with their bodies. Moreover, Alaska’s judiciary branch —its court system— has made various decisions that have upheld the right to choose and also because the state’s constitution provides good protection of privacy, which the courts have protected. Another example is Montana, where the courts have maintained the right to abortion. These states and others are dominated by abortion opponents in various political offices, plus abortion seekers face issues related a scarcity of abortion providers and long distances that many abortion seekers must travel to reach abortion facilities. However, despite the Dobbs decision, abortion opponents in such places are finding that there are obstacles preventing them, or at least slowing them, from taking full advantage of the SCOTUS’ overturning of Roe v. Wade.
In other states —Mississippi, Texas, Tennessee, and Arizona just to name a few— the Dobbs decision has allowed situation to become very grim in terms of abortion rights and for reproductive health care in general. Meanwhile, numerous US states continue protecting the right to abortion and access to abortion care as they did prior to Dobbs, as if Roe v. Wade were still in effect. Only time will tell how the situation evolves over the next decade, or the next 50 years.