Published: 04th May 2022
#WhatTheFAQ: What's the row over Roe v Wade? Why is it creating tensions across the USA?
The US Supreme Court witnessed massive protests outside its building on May 2, Monday night. People are protesting a potential overturn of a landmark judgement of the SC
Seems like the US Supreme Court is about to overturn its historical Roe v Wade judgement of 1973. Or at least that's the word on the street. As the hearing date approaches closer, anticipation is building among people. The question that everyone has on their mind is whether the Supreme Court will uphold or overturn this judgement.
But let’s stop right here and go back to the past to understand, in detail, what this is all about, and why is the SC’s decision so important that everyone around the world is talking about it, even us Indians.
What is the Roe v Wade judgement?
The judgement refers to the verdict of the 1973 case involving a single pregnant mother, whose legal pseudonym was Jane Roe. She had legally challenged the Texas abortion laws (the case was filed against Henry Wade, the local district attorney). The US Supreme Court, with a 7-2 verdict (which means that seven judges were in favour of the decision while two were against it), declared abortion to be a fundamental right and placed it under the right to privacy. The court, for giving its verdict, had cited the 14th amendment to the US Constitution, which held, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
The Roe v Wade judgement, thus, became one of the most significant decisions on abortion, which legalised abortion in the United States.
What was the framework for this judgement?
The SC had devised a threefold framework to make the Roe v Wade verdict work. It stated that during the first trimester of the pregnancy, no state of the country could impose any restriction on abortions. During the second trimester, states could impose narrow restrictions, but only to protect the mother’s health, and it allowed states to impose legal prohibitions on abortions for the third trimester.
However, in another case that was heard in 1992, the court abandoned the trimester framework and foetal viability (defined as the ability of the foetus to live, under normal conditions, outside the uterus) was given primary importance. And the states were allowed to impose legal prohibitions before the end of the second trimester.
Then, why does it stand to be overturned?
Abortion is a contentious issue in the US. On one hand, Republicans and the Christian Right view it as an assault on the right to life, and on the other hand, the Democrats, liberals, women and human rights groups want it as a fundamental human right. The issue reached the Supreme Court once again in December 2021, when a case against the Mississippi legislation which banned abortion beyond 15 weeks was heard. It has been reported by Politico (a political journalism company) that a draft opinion, in this case, states that, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.
While a majority of the judges have backed this opinion, the views of Chief Justice John Roberts are not clear regarding the matter. If this draft opinion is upheld, the judgement is most likely to be overturned. The final verdict is set to be released this summer, in late June or early July.
How did the news get out?
The draft opinion was leaked from the SC. And Chief Justice John Roberts has authenticated it, but has also stated that it is not final. “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” Politico has reported. There are many speculations on the source of the leak, but no definite information.
What will happen if it is overturned? What will be the implications?
If the verdict is overturned, it will have major ramifications in the US elections. Republicans are likely to pass laws in state legislatures where they are dominant and call for a nationwide abortion ban, while Democrats are likely to be rallying for repealing the verdict. Women and human rights groups too will be protesting against it.
What are people saying about it?
Thousands of people are protesting outside the US Supreme Court, including reproductive rights advocates and anti-abortion activists. In interviews with Al Jazeera (a media company), women have claimed that “they feel dejected” and “their rights are not safe”. The draft opinion has also been labelled as “shameful”. US President Joe Biden has supported the protesting voices and stated, "Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned". He has also urged the people to defend the “fundamental” rights of a woman.
What’s the law on abortion when it comes to India?
Abortion in India has been legal under various circumstances as specified by the Medical Termination of Pregnancy (MTP) Act of 1971. The Act has had two amendments made to it, the latest being in 2021. Special categories of women can now seek safe abortion services till 24 weeks of pregnancy. And abortions are now completely covered by the government's public national health insurance funds, the Ayushman Bharat and Employees' State Insurance.