The Truth Surrounding Abortion Rights in America and the Recent Roe vs. Wade Decision

Just to warn you, this will be long – and will likely piss off assholes who disagree with bodily autonomy.

The truth surrounding the debate over abortion in America is that there isn’t actually a debate to be had whatsoever. Abortion is not and should never be looked at as a political debate, and abortion rights as a whole are not controversial among Americans. Regrettably, a domineering and authoritarian minority is attempting to compel an immense majority to comply with their predominantly religious and certainly anomalous views – views that are absolutely unrepresentative of those held by the citizens of this country (or any other country where a sense of moral decency exists).

On Monday night it was revealed in a draft opinion leaked by Politico that a majority of the nine Supreme Court justices voted to overturn the landmark Roe Vs. Wade ruling from 1973 – a ruling that has been enshrined in American law and protected a woman’s right to bodily autonomy for decades. Although politicians continuously attempt to frame abortion as a highly controversial and partisan issue, the truth is that America is an overwhelmingly pro-choice country. According to a joint ABC News and Washington Post poll, less than a third of Americans want Roe to be overturned, while conversely, 75% of Americans and a majority of Republicans believe the decision to have an abortion should be a private matter discussed between a woman and her doctor, uninfluenced by the state. A NORC/University of Chicago poll conducted in June of last year found that 57% of the 1,125 citizens polled believe abortion should be legal in all or most cases. (Note that support for abortion rights exists in citizens across racial, gender, geographic, and even educational lines.) Regrettably, media outlets and politicians alike employ strong rhetoric in attempts to frame abortion as merely a political issue that should be left in the hands of state lawmakers instead of what it truly is: a matter of basic, fundamental healthcare access for women.

For those unfamiliar with the case, in December of 1971, Jane Roe filed a lawsuit against a Texas district court which had at the time just passed a law outlawing abortion with only one exception: a doctor’s note ordering the salvation of the women’s life. The Roe case raised the question to the Supreme Court of whether or not the Constitution recognized a women’s right to end her pregnancy through abortion. In a decision that has been at the center of jurisprudence for decades since its announcement, the court ruled that the right to privacy, inherent in the due process clause of the fourteenth amendment protects a women’s right to choice. Moreover, it was also determined that the broadness of the ninth amendment’s reservation of power to the people encompassed this decision as well.

The main argument that “pro-life” conservatives default to when trying to justify abortion bans is that nowhere in the Constitution is a sexual right to privacy explicitly mentioned. While this is true, women’s right to privacy and choice has been codified in the rulings of countless court cases, all of which were successfully argued under the premise that “a zone of privacy is created by several fundamental constitutional guarantees.” These “zones of privacy” function to protect individuals from governmental interference in very personal situations and were established by (legendary) Justice William O. Doug as he delivered the verdict in the Griswold Vs. Connecticut case, which served as the precedent for Roe. In Griswold, the Supreme Court found that state constitutions banning the use of contraceptives violated the right to marital privacy which is inherent in the Ninth Amendment. Thus, it is imperative to understand exactly what the Ninth Amendment says and the role it has played in the course of abortion legality.

The vaguest of all sentences in the Bill of Rights, the Ninth Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Although the framers of the Constitution were referring to federalism when drafting the Ninth Amendment, most Americans today view it as a ground for judicial activism and a rationale for inexplicit rights of individuals (and there is a conspicuous reason for this). The ninth amendment was worded ever so vaguely and ambiguously specifically to account for the evolution of society, and it is for this reason that implicit rights in amendments, most notably the right to privacy, are subject to protection through legislation and supreme court decisions. The ruling in the Griswold case established a new magnitude to which the government could interfere with the personal lives of individuals, paving the way for future cases such as Roe vs. Wade to argue for the right to abortion under the sphere of personal privacy.

In Roe, the Supreme Court was essentially caught in a Catch-22 situation, forced to weigh a woman’s right to personal privacy and bodily autonomy against the state’s obligation to preserve the health of the woman and the “potentiality of human life” (referring to the fetus). In a 7-2 decision, the court came to the most feasible and ethically responsible resolution given the significance of the interests being scrutinized. Rightfully, a woman’s basic right to personal privacy was upheld, with the Supreme Court invalidating any law that restricted abortion without respect to the stage of pregnancy – this stipulation regarding the stage of pregnancy was added to protect the state’s interest in the case. Basing the measure on guarantees found in the First, Ninth, and Fourteenth Amendments, the court established the implied rights of personal liberty and personal privacy – rights that were reinforced in Casey vs. Planned Parenthood.

At the forefront of Casey lies the matter of fetal viability and the “viability standard.” Fetal viability is the point where, with medical assistance, a fetus can survive outside of the womb – although the exact point varies on a case-by-case basis, it is accepted among the physiological community that viability occurs relatively close to the 24th week of pregnancy. Casey upheld the basic principles that Roe was founded upon, concluding that a woman has the inalienable right to terminate her pregnancy until the viability point of the fetus and that she can, if required to save her life, choose to abort past this point. Additionally, the court contended that the government was not allowed to place an undue burden on the woman through hindering regulatory procedures. The plurality of justices found that the viability standard was a more appropriate determinant to rely upon than the trimester framework established in Roe in part because the latter “misconceives the nature of the pregnant woman's interest.” Although Casey revised and improved the legal basis for the right to abortion, it made sure to protect the fundamental right addressed in Roe: the implied right to privacy. So what does fetal viability have to do with the current situation?

"L"ississippi

In 2018, Mississippi voted to criminalize abortions after the 15th week of pregnancy, with the only exception being to save the woman’s life. According to the CDC, in 2019, 7% of all abortions (about 36,000 total) took place at or past this mark. When this attempt to stifle women’s right to bodily autonomy was deemed unconstitutional in court, Mississippi appealed to the Supreme Court arguing that the Casey decision itself was flawed, due to fetal viability not being an “appropriate” standard for determining constitutionality (did somebody say brainless?). Essentially, Mississippi wants the Supreme Court to completely disregard medical science and reverse arguably the most influential and integral decision it has made in modern history. Although in recent years the court has allowed states to place provisions on abortions to account for medical advances, nothing close to as absurd as a ban on pre-viable fetuses has been allowed.

A Profound Impact

What many don’t understand is the seismic affect a decision as drastic as reversing Roe Vs. Wade would have on America. This would open the door for other liberties such as same-sex marriage and interracial marriage, both safeguarded in the implied rights of privacy as well to be dismantled over time. If the Supreme Court overturns Roe on the basis that the term “sexual privacy” isn’t explicitly mentioned in the Constitution, it is completely plausible that contraception could be next on the chopping block (because Roe relied on Griswold as precedent)…and conservatives know this. Unsurprisingly, the primary contributor to the decrease in abortions in recent years is contraception. Logically, you could assume that those who oppose abortions would support preventative contraceptives such as the IUD or “the Pill” — but actually the reverse holds true (what else could you expect from the callous idiots elected to the Mississippi state legislature?). The same influential lawmakers and groups that are steadfast in eliminating abortion rights are the same ones that are adamant about ridding America of modern forms of contraception. That is harrowing. Almost two thirds of women in America who are physically able to birth a child actively use contraception and 99% have relied at least once on a contraceptive to prevent an unwanted pregnancy. Furthermore, 12 Republican-run states have already prepared trigger laws that would become effective immediately (if the repeal of Roe is successful) and prohibit virtually all abortions. These same states have been actively searching for a way to abolish safe forms of contraception as well; this would be the first step towards allowing that to happen. Let it not be mistaken: the term “pro-life” is a guise utilized by conservatives whose religion and/or ignorance prevents them from understanding the very basic fact that women have the indisputable right to privacy and bodily autonomy (and that no man has the right to take that away).