[VidhiSpeaks] Abortion rights in a post-Roe America

By Kanav Narayan Sahgal

Abortion remains a divisive issue in American politics even today. Earlier this month, Republican Governor Ron DeSantis signed a 15-week abortion ban in Florida- weeks after signing the now-infamous Parental Rights in Education Bill which prohibits discussions of sexual orientation and gender identity in classrooms for children from kindergarten through grade 3. Both laws go into effect on July 1, 2022, and reflect a growing orthodoxy among Republicans on abortion and LGBTQ+ rights.

The States of Kentucky and Oklahoma also passed restrictive abortion laws recently, with Kentucky banning abortions after 15 weeks and mandating extremely strict compliance regulations on abortion clinics. Meanwhile, the Oklahoma law considers abortion a felony offense and punishes anyone convicted of performing one with a decade in prison and a $100,000 fine. This slow but steady build-up on abortion rights restrictions has a long legal history.

In fact, the Supreme Court’s own judgment in Roe v Wade (1973) discussed some of this history. The Roe Court opined that the restrictive criminal abortion laws of 1973 were actually of a fairly recent origin and that under early common law, pre-quickening abortions were acceptable. By highlighting that women had more reproductive rights in the 19th century than in 1973, the Roe Court hinted at how abortion restrictions were not an integral part of American history and culture and hence, merited review- a position that pro-life supporters lambast even today as an attempt of historical distortion.

Legal scholar, Robert M. Byrn called it “incomprehensible” for the Roe Court to interpret common law history as one that granted women a “right” to abortion. Instead, he contented, common law actually sought to protect unborn children- not women, with the first English abortion statute of 1803 stipulating penalties for an abortion of a woman "quick with child". Successive court rulings also raised questions of when abortion was permissible and when it wasn't, but only while keeping fetal life in mind, not women’s “rights”.

Byrn goes on to explain that American abortion statutes throughout the 19th century continued to keep fetal life in mind while proscribing abortions (the intent of these regulations was not, as the Roe court opined, to protect maternal health); and it is this reading of history that has engendered strong opposition to Roe over the years and raised questions about the Roe Court’s final verdict which granted women a constitutional right to an abortion, while simultaneously not granting fetuses any “personhood” recognition in the American Constitution.

Over the next five decades, State and federal courts in the US have adjudicated on several abortion cases which span a range of issues, from those concerning targeted restrictions on abortion providers (TRAP) laws (laws meant to over-regulate abortion providers), medical abortion and abortion-telemedicine restrictions, mandatory counseling and waiting period regulations, and of course, unconstitutional abortion bans, such as Alabama’s Human Life Protection Act (2019) and Texas’s Heartbeat Act (2021)- among many others.

What these cases show is that it isn’t just the American electorate that remains deeply divided on abortion rights; the US Supreme Court also seems split and important decisions over the years have demonstrated this - Rust v. Sullivan, Planned Parenthood of Southeastern Pennsylvania v. Casey (Casey), Webster v. Reproductive Health Services, Stenberg v. Carhart, and Gonzales v. Carhart all fractured the court - each of which was decided by a 5-4 majority.

Another important case, Akron v. Akron Center For Reproductive Health was decided by a 6-3 majority and Whole Woman’s Health v. Hellerstedt by a 5-3 majority. Gonzales v. Carhart was particularly interesting because in it, the Court upheld Congress’ 2003 ban on “partial-birth abortion” while reaffirming the central holding in Roe and Casey which recognised the State’s interest in protecting maternal health and the life of the fetus from the outset of pregnancy and not just after viability.

The case before the Supreme Court now - Dobbs v. Jackson Women's Health Organization - goes a step further by hitting at the heart of Roe and Casey. This case involves a 2018 Mississippi law (the "Gestational Age Act") which bans most abortions after 15 weeks of pregnancy. While the lower courts blocked the law from going into effect, it has now reached the conservative super-majority Supreme Court for judicial review; and the question before the court is whether all pre-viability prohibitions on elective abortions are unconstitutional - a question already resolved by the Supreme Court in Roe and its progeny, yet is revisited today.

Key takeaways from Oral Arguments in Dobbs

Oral arguments in Dobbs concluded in December 2021 and centered on the constitutionality of the Supreme Court’s reasoning in Roe and Casey and whether stare decisis principles (adherence to precedent) applied to Dobbs. Advocate Scott Steward, representing the petitioners, argued that the “undue burden standard” as laid out in Casey was arbitrary and unworkable- and hence, merited review. He also argued that the viability line (which was upheld in Casey as an essential holding of Roe) was equally unworkable and should also be scrapped.

For these reasons, stare decisis should not apply in Dobbs and thus, Roe and Casey should be overturned. Essentially, Steward urged the Court to allow State governments to legislate on abortion before viability if they so wanted, irrespective of whether the mother’s health was at risk - because the judicial reasoning in Roe and Casey was, in his opinion, unsound.

If advancements in science over the past 30 years since Casey had made abortions safer and also enabled doctors to detect early signs of fetal pain and fetal heartbeats, why should the Supreme Court not consider these facts before deciding whether or not to grant Mississippi the right to protect fetal life at the onset of pregnancy?

On the other hand, advocate Julie Rikelman, representing the defendants, centered her arguments on three things: upholding stare decisis, protecting women’s liberty, and recognising women’s reliance interests on Roe and Casey.

If, in Casey, the Court had already weighed the pros and cons of overruling Roe, why should the Supreme Court have to repeat this exercise today? Moreover, she also acknowledged that while the state may have an interest in protecting fetal life before viability, it would be problematic to not balance that interest with a woman’s liberty interest in making decisions about her own body - and the viability line appears to be the most tenable legal solution to resolve this conflict.

Towards an uncertain and grim future

Only time will truly tell which side of the pendulum the Court will swing. However, given the current composition of the Court and the line of questioning by the six conservative justices during oral arguments (especially, Justice Barrett’s questions on safe haven laws, Justice Alito’s questions about secularism and the origin of life, Justice Kavanaugh’s questions about the US Constitution’s “silence” on abortion matters, Justice Thomas’ questions about the possibility of exploring standards apart from the viability standard, Justice Roberts’ questions about the central holding of Roe and Justice Gorsuch’s questions about overturning precedent), the Court appears poised to uphold the Mississippi law and bringing back the abortion issue to the states. If this does happen, State legislatures across America would effectively be allowed to prohibit pre-viability abortions at any point they wish- from 0 days (which is an outright ban) to 6 weeks (eg: Texas) to 6 months (eg: California) or more.

In a post-Roe America, abortion legality would be similar to same-sex marriage recognition - with almost half the country recognising the right, and the other half banning it. The Guttmacher Institute reports that 23 US States currently have restrictive anti-abortion laws, while only 16 US states and the District of Columbia have laws that protect the right to abortion. Of the 23 states, some have retained their pre-Roe laws which could go into effect if Roe is overturned, while others have ‘trigger laws’ which are preemptive abortion bans that expressly mention the State’s intent to ban abortion as and when Roe is overturned.

A decision in favor of Mississippi may also spell concern for married same-sex couples. After all, same-sex marriage was also a deeply polarising issue for almost a decade in the US and culminated in an equally polarising 5-4 decision in Obergefell v. Hodges that ended State bans on same-sex marriage all over the United States.

Although advocate Steward categorically mentioned during oral arguments that the Court should not revisit Obergefell or Lawrence v Texas (a landmark case that legalised private and consensual same-sex conduct between adults), a decision in favor of Mississippi could bolster conservative legislators to open the floodgates for judicial review of these cases.

It should be pointed out that Roe, Casey, Lawrence, and Obergefell all drew from the substantive due process clause in the Fourteenth Amendment. It was this reading of the law that allowed the Supreme Court to grant women the right to privacy and abortion, and gay adults the right to marry and engage in private and consensual same-sex conduct. Thus, a rollback of Roe and Casey could mean a potential rollback of other laws that draw from similar legislative principles- principles that conservative jurists are eager to dismantle.

It truly would not be surprising for this conservative super-majority Court to consider reviewing cases involving potential new state bans on same-sex marriage - if and when they appear or state bans and/or restrictions on same-sex adoption. After all, all State legislators need to do is to demonstrate a compelling State interest in ‘protecting and preserving traditional marriage and family values’.

It should be noted that the abortion issue is very different from same-sex marriage because abortion involves the termination of another life, while same-sex marriage does not and it is precisely for this reason that advocate Steward urged the Court to revisit the applicability of stare decisis in Roe and Casey and not Obergefell and Lawrence. Because, while Obergefell and Lawrence laid out clear rules, Roe and Casey purportedly did not. That being said, given the spate of anti-LGBTQ+ legislation currently sweeping the nation, advocate Steward’s assurance doesn’t seem very compelling.

The Dobbs verdict is expected to come out in June or July of 2022. Whatever be the Court’s decision, it is bound to be momentous and polarising in equal measure.

The author would like to thank Dr Dhvani Mehta (Co-Founder at Vidhi and Lead, Health) for her suggestions and comments.

Kanav Narayan Sahgal is a Programme and Communications Manager at the Vidhi Centre for Legal Policy and the Nyaaya initiative.

Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.