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What is Roe v Wade and why is the US Supreme Court overturning abortion rights?

ABC Health logo ABC Health 24/06/2022

The right to an abortion in the United States comes from a landmark court decision made in the 1970s, known as the Roe v Wade case.

For almost half a century, this legal ruling had granted Americans the constitutional right to access abortion services.

Now, the US Supreme Court has overturned that historic legal decision, making it the responsibility of individual states to decide if abortion is legal.

What is the Roe v Wade case?

In 1970, young Texas woman Norma McCorvey, who went by the pseudonym "Jane Roe" sued for her right to terminate a pregnancy.

At the time, it was only legal to terminate a pregnancy in Texas if it presented a serious risk to the mother's life.

Ms McCorvey argued against the defendant — Dallas County District Attorney Henry Wade — that the Texas laws were unconstitutional because they were vague and violated her right to privacy. 

After years of legal challenges and appeals supported by the US women's rights movement, her case was eventually heard by the Supreme Court.

In 1973, the judges ruled by a 7-2 majority that the Texas law was unconstitutional.

They said that, while America's constitution made no mention of abortion, the right to privacy was implied and that should extend to a person's reproductive decisions.

This court ruling prevented all 50 US states from banning abortion access outright and established a new national framework for abortion.

The new framework

As a result, the new framework stated:

  • All women in the US have the right to an abortion in the first three months (trimester) of pregnancy
  • The states have the right to regulate but not ban abortions in the second trimester
  • The government can prohibit abortions in the third trimester as the foetus's survival rate outside the womb becomes higher.

The exception was that a woman would have the right to have an abortion if the pregnancy posed a risk to her life.

How was it overturned?

This year, the US Supreme Court had been considering a case called Dobbs v Jackson Women's Health Organisation.

The case was challenging a law that was passed in the US state of Mississippi in 2018, banning abortion after 15 weeks.

Opponents say it violates the rights established by Roe v Wade, which does not cut off abortion access until a foetus becomes viable, at 24 weeks.

The Supreme Court on Friday ruled in favour of the Mississippi abortion ban, effectively ending the constitutional right to an abortion for millions of Americans.

Conservative judges hold a 6-3 super-majority on the US Supreme Court, which includes three justices who were hand-picked by former US President Donald Trump in the hope of overturning Roe vs Wade.

What happens now to abortion in the US?

It is now up to individual states to decide whether or not women will have the right to an abortion.

More than 20 states are expected to introduce laws to restrict or ban access to abortion, with many already having laws or constitutional amendments in place. 

Some states have what is called a "trigger ban" in place, so that abortion is immediately outlawed in almost every situation, once Roe v Wade is overturned.

While some politically progressive states — such as California and Washington — will likely continue to provide access to abortion, other conservative states, such as Mississippi and Arkansas, would immediately make abortion illegal.

Supporters of abortion access say the procedure would only be accessible to those who could afford to travel to the states where it remains legal.

They say those who cannot afford to travel would be forced to give birth or may even seek a dangerous, illegal abortion.

The decision appears to be out of step with views of most Americans, with national polling consistently showing that most believe the procedure should be legal. 

A poll in late 2021 found that 59 per cent of American adults believe abortion should be legal in all or most cases, while 39 per cent think it should be illegal in all or most cases.

Video: Supreme Court overturns landmark Roe v. Wade ruling (Reuters)

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