Sarah Smith
BBC News, London, June 27, 2022
The Supreme Court just lobbed a constitutional hand grenade into the raging culture wars in the US, igniting a fresh battle in this decades-long fight over abortion.
In a 6-3 ruling, the Court found that there was no constitutional right to abortion, turning the decision of whether to allow abortions or not up to the States. Millions of women are now expected to lose access.
While this legal ruling will change the law, it will not settle the arguments over abortion. It will inflame them.
Anti-abortion campaigners jubilant
Jubilant anti-abortion campaigners have achieved something that seemed practically impossible only a few years ago. They believe that thousands of babies’ lives will now be saved.
Pro-choice advocates are left utterly dismayed as they think women’s rights have just been set back 50 years. Back to a time when women died as a result of illegal back-street abortions.
Recent polls suggest that around two-thirds of Americans did not want to see the constitutional right to abortion removed.
In such contentious times, even the lofty Supreme Court itself becomes a leading character in the narrative, not just an adjudicator. Before this ruling came out, a man with a gun and knife was arrested outside the home of one of the more conservative justices, saying that he was upset by a leak of the draft ruling. Supreme Court justices now have to have security protection. That is how incendiary this issue has become.
This decision was based on their interpretation of Constitutional Law, but it is also deeply political. When the Court overturns a previous ruling, it inevitably looks to critics to be more political than constitutional.
The Court has a 6-3 conservative supermajority, thanks to the three justices appointed by Donald Trump. He made a specific campaign promise to appoint judges who would overturn Roe v Wade – and those appointments will probably be his most lasting legacy.
Effect on the 50 States
The seismic political impact of the Supreme Court’s ruling will be felt across all 50 States, but the immediate practical impact of much more restrictive laws is likely to happen in half of them.
One of those States is Oklahoma, which last month passed the most restrictive abortion legislation in America – a total ban from the point of conception with few exceptions.
When I met state representative Wendi Stearman in Tulsa, she told me that it is her honour and privilege to have authored the Bill. She says that she will be helping 4000 unborn children every year “to have a chance at life.”
When I asked her if she believed that the legislation would stop abortions from happening in Oklahoma she said no – but that it will make them more difficult to obtain.
She argues that in all but a tiny minority of cases, women can choose not to become pregnant before conception and that “most women just use abortion as a form of contraception.”
That is an argument vehemently refuted by Andrea Gallego, who runs an abortion clinic in Tulsa.
She says that the decision to have an abortion is often the hardest decision any woman will ever make.
A few weeks ago, her clinic was treating around 40 pregnant patients every day.
When I visited, the waiting rooms and treatment facilities were empty. Only a few staff remain – answering calls and giving out information about clinics in other States.
“Patients have been begging for help. It is devastating. These laws do not prevent abortion. They just add extra burdens to patients,” she says.
What is already happening in Oklahoma will now be replicated in other States.
Now that Roe v Wade is overturned, 26 States could further restrict abortion access, including 13 States that have passed so-called trigger laws, which would introduce bans immediately upon the Court’s decision. Less than a third of those States would include exceptions for rape or incest, according to the legislation they have already passed, or are trying to pass.
‘Abortion Sanctuaries’
Democratic-controlled States like California and New York will cast themselves as abortion sanctuaries, welcoming women from places where the procedure has been outlawed. There are 20 States in all where abortion will remain a protected right. About 26.5 million women of childbearing age live in those States.
As abortion clinics close down in States that have outlawed the practice many more are expected to open near state borders in places where it is still allowed. Those who do not have the time or money to travel may resort to other means – such as ordering abortion-inducing pills online – even if it is illegal.
There were between 600,000 and 800,000 abortions in the US in 2019.
According to the Centre for Disease Control, about one in six pregnancies end in abortion, and over 90% occur in the first trimester. Over half of women who get abortions are already mothers, and for most, it is their first abortion.
The Court’s decision could not be more timely, as Americans are set to vote for their representatives in Congress later this year.
Facing a thrashing in November’s elections, the Democrats hope the abortion issue will galvanise pro-choice women to come out and vote for them. But they have already failed in their attempt to get Congress to introduce legislation to grant a federal right to abortion, which would have stopped individual States from banning the procedure.
Even if Democrats keep control of the House and Senate, they will not be able to overturn this Court ruling.
On the other side, there are plenty of Republicans who would like to legislate for a federal abortion ban that would outlaw abortion across all States. That may be the coming battle if Republicans take control of Congress after the next election.
Further fights may be had over how this ruling affects certain types of contraception or IVF treatment. And some have questioned whether similar legal arguments can be used to undermine same-sex marriage.
America today feels like a country that contains two very separate nations, inhabited by two tribes that have completely different values, beliefs and goals.
Now, they have just moved farther apart.
Sarah Smith is the North America Editor of BBC News. We acknowledge BBC News with gratitude.
