Prateek Srivastava for Gender Team at CRRSS
According to an initial draft majority opinion authored by Justice Samuel Alito and shared within the court and acquired by POLITICO, the United States Supreme Court has voted to overturn the landmark Roe v. Wade decision.
The draft ruling is a vehement, unabashed rejection of the 1973 judgment that secured federal constitutional safeguards for abortion rights, as well as a second 1992 decision—Planned Parenthood v. Casey—that substantially upheld the right. Alito comments, "Roe was egregiously erroneous from the start."
In the "Opinion of the Court" statement Justice Alito adds "We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."
Politico states that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Justice Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Justice Samuel Alito in an initial draft majority opinion
According to the source, the three Democratic-appointed justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—are working on one or more dissents. It's uncertain how Chief Justice John Roberts will vote in the end, or whether he'll join a previously prepared opinion or write his own.
The paper, described as an initial draft of the majority opinion, is marked as having been exchanged among the justices on February 10th. If the Alito draft is approved, it will rule in Mississippi's favor in a widely watched case involving the state's attempt to prohibit most abortions after 15 weeks of pregnancy.
A Supreme Court official declined to comment on the draft paper or make another court representative accessible to answer questions about it.
Politico has detailed every aspect of the ongoing proceedings, which are available here. Several state officials, senators and others have responded to this sudden, yet somewhat predictable, overturning.
Protesters rally outside the U.S. Supreme Court after a draft majority opinion on Roe v. Wade was leaked.
We saw it coming?
In 2018, the famous for all the wrong reasons, Brett Kavanaugh’s appointment to the bench had caused a major panic amongst international abortion-rights groups. The fear was revisited when the former President Trump got his third nominee to the Supreme Court, Judge Amy Coney Barrett, apointed in October 2020.
With the confirmation of Brett Kavanaugh, and then Amy Coney Barrett, there were real expectations that the Court would reverse Roe v. Wade fully or partly, as it reviews future abortion cases. International and US-based abortion rights groups had somewhat predicted that overturning Roe v. Wade would cause a crippling loss that will threaten legal abortion not just in the United States but around the world. Unfortunately the fear is becoming closer to reality now.
Center for Reproductive Rights, group that has rallied against banning or making abortions illegal for years, in the US and abroad, had warned “We may face the greatest risk to the future of reproductive rights,” in 2019. Shannon Kowalski, director of advocacy at the International Women’s Health Coalition in a press release following Kavanaugh’s nomination on July 9th also stated: “If confirmed, Kavanaugh would pose a grave threat to sexual and reproductive health and rights, both in the United States and around the world.”
The election of 3, and one already stationed, conservative anti-abortions gender critical justices to the supreme court had already created the precident that abortion rights will be under the radar of the conservatives, who currently hold the majority in the supreme court.
Oral arguments in a historic Mississippi lawsuit that jeopardized Roe v. Wade's existence began on December 1, 2021. The conservative court appeared to be leaning toward upholding the state's legislation prohibiting abortion beyond 15 weeks of pregnancy, far ahead of the viability line established by previous precedent. The law, which makes no exceptions for rape or incest, was passed in 2018, but was immediately overturned by two federal courts, which ruled that it was in violation of Roe v. Wade.
Simply put, the historic decision taken in 1973 — Roe v. Wade judgment established that a woman's right to an abortion is protected by the Constitution, and that states cannot prohibit abortion unless the fetus is viable, or capable of surviving outside the womb. The criterion for viability is now believed to be between 22 and 24 weeks of gestation.
According to the World Health Organization, the The U.S. is one of 55 countries where abortion is permitted at the choice of the pregnant woman with no need for explanation. However, restrictions on abortion at the state levels, makes accessing an abortion far more difficult in some places than others.
Whenever the Supreme Court has revisited Roe v. Wade, abortion groups have argued for a customary human right to abortion that has emerged through international human rights mechanisms. As this overturn comes to light, what are the international implications of this act? This overturning, even though not yet confirmed, sets the United States aside from the rest of its allies, as democracy dies a slow death.
International Community v. The United States
According to the Center for Reproductive Rights (CRR), which campaigns for improved abortion access and monitors laws around the world, all but two of the 36 countries defined as developed economies by the United Nations Department of Economic and Social Affairs — Poland and Malta — allow abortions on request or on broad health and socioeconomic grounds.
Canada one of the few countries which allows abortion at any point during pregnancy. Most European Union nations, including those in the G7, allow abortion with gestation limits, the most common being 12 weeks. Exceptions after that period are usually permitted on certain grounds, such as if the pregnancy or birth poses a risk to the mother's health.
Activists around the EU have also called for loosening restrictions on abortions in their countries. Abortion is legal in Germany up to 12 weeks of pregnancy, but patients must first attend an obligatory counseling session, which is followed by a mandated three-day waiting period.
Abortion is legal in Japan, as it is in Finland and India, in circumstances of rape or danger to the woman's health, as well as on broader socioeconomic reasons. According to the CRR, none of the developed countries where abortion is allowed have imposed a gestation limit as low as six weeks, as Texas has.
The definitive record of the legal status of abortion in countries across the globe, updated by CRR
While Roe v Wade has helped establish various forms of solidarity networks amongst groups across the world fighting to legalize (or make further changes to existing) abortion laws, the opposition to Roe v Wade has also established strong ties across the globe.
The United States is not the only country where abortion rights are under threat; nationalist and totalitarian governments in other, more socially conservative parts of the world have taken similar steps to limit access to abortions.
Poland is one of the most famous examples in this regard, where a ban on abortions due to fetal deformities went into force in January 2021, thereby putting an end to all abortions in the country.
Since taking office in 2015, the Polish government has made abortion a political ploy, catering to social conservatives in the mainly Catholic country while generating enormous demonstrations in the country's more liberal cities.
Following Poland's path, Slovakia attempted to impose restrictions on reproductive rights, but in the last two years, the country's parliament has rejected multiple proposals imposing such restrictions. In Croatia and Italy, the "conscience clause," which empowers providers to refuse to give terminations due to moral objections, has been widely used.
Abortion restrictions are generally stringent in Central and South America. According to HRW, the procedure is illegal in Brazil except in certain cases, such as congenital abnormalities or if the pregnancy is the consequence of rape. Abortion is absolutely prohibited in Nicaragua and El Salvador under any circumstances, and prison penalties in the latter nation can last up to 40 years.
As the United States moves towards radical conservatism at the supreme court level, pro-choice groups and lobbyists in several pro-abortion countries gather more support. Various groups in Poland, Italy, and Slovakia have used the white nationalism discourse seen in the United States to their benefit. Even in the progressive blocks of the EU, this comparison can easily be made. Hence, as the road to banning or slicing down on abortion rights is carried out in the United States, the implications of the same are massive, and affect women in various parts of the world. Now if one wants to call it the curse of globalization or the nature of American imperialism, that wouldn’t be completely wrong!
A Way Out ?
Well this isn’t a way out, however many groups, such as the Center for Reproductive Rights have largely rallied for “Abortion rights are Human Rights.” It argues that “The right to safe and legal abortion is a fundamental human right protected under numerous international and regional human rights treaties and national-level constitutions around the world”
The details of the campaign for a human right to abortion were first laid out in the Congressional Record by Rep. Chris Smith in 2003, after he obtained a leaked internal memo of the Center for Reproductive Rights. However CRR has since been very vocal about the same. Scholars argue about what constitutes a legally enforceable, accepted international standard. Some seriously question whether it's even possible to make customary law claims in the context of human rights. A binding customary norm is said to exist when States participate in a specific type of action with near consistency and universality, based on the idea that such conduct is required by international law. Judges and activists have decreased this requirement (without modifying it entirely) in recent years to make it easier to assert customary international law claims, particularly in new areas where customary international law did not exist before, such as human rights.
Abortion-rights advocates have attemptied to seize UN agencies and the UN human rights systems in order to persuade them to adopt international abortion legalization, allowing abortion campaigners to claim in national courts that a customary, international human right to abortion has evolved. Countries will then legalize abortion, claiming that they are required to do so by international law, remains an aim for several groups and activists.
While this might be a way out, and doing so would again have more international implications than merely Roe v Wade, however for now — this is a work in progress.
As of now:
Sixteen states, including the District of Columbia, have passed laws protecting the right to abortion, and more states, such as New Mexico, are expected to follow suit soon. California approved a key bill that protects the privacy of women seeking abortions while also addressing racial and economic gaps in access by making abortion coverage available through Medicaid. Oregon has enacted legislation that provides financial assistance to abortion providers. A law was approved in Washington state that prohibits legal action against those who seek abortions and those who assist them. We are still waiting to see what unfolds in the future. Potential conflicts in the courts, houses, and everyday politics can shape, in some ways, how this overturning proceeds further.
The Democratic leaders in Congress, Senator Chuck Schumer and House Speaker Nancy Pelosi, issued a joint statement saying that the draft opinion, should it become the court’s decision:
What happens next is a painful wait for democracy in the United States and, more importantly, for women's rights.