373.4 Roe v. Wade | Scoins.net | DJS

373.4 Roe v. Wade


Roe v. Wade, pronounced as if a single word, was a landmark decision from 1973. It disagreed and therefore 'struck down' as the Americans have it, the existing state abortion laws. This lit a fire under debates about whether abortion should be legal, who decides that, how such matters are decided and, of course, the extent to which the state can/should intervene in matters that are easily declared to be moral or religious. Or both, since people do find it hard to separate them. 

The decision involved the case of Norma McCorvey—known in her lawsuit under the pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion, but she lived in Texas, where abortion was illegal except when necessary to save the mother's life. [81]   So they go to court against the local DA, Henry Wade, alleging that Texas's abortion laws were unconstitutional. They won at federal court and this decision was supported by the Supreme Court, ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether or not to have an abortion. But it also ruled that this right is not absolute, and must be balanced against the government's interests in protecting women's health and protecting prenatal life. Being a markedly hot topic, in the US, well known for a heavy proportion of Catholics, for whom this is a known issue, there was very soon more clarity demanded at law, so that legal tests were required. A pregnancy is divided  into three trimesters, I presume three months, 13 weeks at a time. [wrong, or confused; one line is drawn at 15 weeks, another line is drawn at 24 weeks, in the middle of the second trimester] In the first, abortions are unpreventable by law (if that makes sense; you want one, you can have one); in the second, state or federal regulation could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.  A crucial aspect of all this is that The Court classified the right to choose to have an abortion as "fundamental", which means that challenge starts at the judicial top, since that is who one would be disagreeing with.

In 1992 there was Planned Parenthood v. Casey, which enshrined the right to abortions nationwide. [82]

Roll on to 2021 and [82] makes an interesting read. You need to appreciate that different states have different approaches to liberalism and conservatism (that's Democrats and Republicans respectively, it appears), which strikes me as allowing the state legislature to become political, which in Britain is absolutely not to happen. In the US it is supposed to not happen, yet quite clearly does. Essay, please, from a reader. Now the Supreme Court is heavily conservative, 6:3, and they have a case from Mississippi that disagrees with Roe-v-Wade, that looks, despite the repeated affirmation over 50 years that this is the national law, to be heading towards a repeal of that decision.

I found the CNN report [82] a bit light in content; at first read I thought "This'll do", but when I started asking questions, there were no answers and no pointers to where the content came from – the content confirmation that allows one to see where 'fact' has shaded towards 'opinion'. So I tried the NYTimes, [83]. 

The case is Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. After all, outlawing abortion in America has been an animating object of the conservative movement for nearly half a century. But the Supreme Court never had a reliably anti-choice majority to pull it off. Now, largely thanks to the engineering of Senator Mitch McConnell, the court is stacked with a supermajority of conservative justices, several of whom surely must be tempted to finish the job they were put on the court to do.

The fact that the Dobbs case made it to the court in the first place is reason enough for alarm: Many states have passed abortion bans similar to Mississippi’s that have been struck down because they are obviously unconstitutional in light of Roe v. Wade and subsequent cases. That the Mississippi law hasn’t met the same fate strongly suggests a confidence among conservative justices that they finally have the votes to end Roe for good. A similar confidence—not to mention a blithe indifference to women’s civil liberties—was reflected in the Supreme Court’s recent refusal to summarily strike down a new Texas law that effectively bans most abortions in the state.

In the opinion of the NYT, the more likely outcome—for this term, at least—is not an outright reversal of Roe but a rerun of a show Americans have been watching for the past 30 years: a ruling that preserves the right to abortion in name while making the exercise of that right ever more difficult, if not impossible, in practice.

Which is altogether odd, given that the most pressing issue in the Dobbs case is not the legal response of the court but the political response of a consistent majority of Americans who agree that a woman has the right to control what happens inside her own body.

Some view this moment to have a re-run of the fight, where the abortion-rights movement has mostly played defence, believing that the courts would serve as a backstop. But perhaps this should be seen as an opportunity that, while engineered for entirely political reasons (nothing, clearly to do with reproductive freedom) could be centred on women’s equality and liberty, not on their privacy, the right on which the Roe decision was grounded. But there is precious little foundation for something so fundamental, which is evidenced by the struggles and successes of the LGBTQ movement.

Whatever the court rules on Dobbs, that will not be the end of this saga. The world has turned and so the constitution cannot be expected to provide answers for significant changes in society. We see this in other countries where historical practice conflicts with modern thinking. So we are likely to see a testing of what happens when a majority of the population disagrees with what the political (I need a better adjective) legislation says is so. It points to an event in which the politicians decisions disagree with a majority of the population. When that occurs, what should happen is that the decision makers are not re-elected. You might even point at any large-scale social movement (think climate change perhaps) and how to involve ordinary people enough to persuade them that this is important enough to change a vote towards whichever party will resolve the issue.   It seems to me that re-solve is what the Republican majority thinks it is about to do.

What would you do with an unwanted pregnancy, such as might follow from rape? It seems to me that you'd soon wish you'd moved to an unrestricted state pretty smartly after the rape; you have markedly less than 15 weeks to sort this, so it might even be that you move before discovering whether you're pregnant. Which doesn't move us much towards justice. Of course the issue with rape is that the men are (probably) at fault and we need to change the way we raise males so that this hardly ever occurs – and that when it does we identify the problem differently, more like why and how and where did we go wrong.  

DJS 20211202

But that last paragraph calls for a change about as unlikely as Britain changing from FPTP to PR.

[81]  https://en.wikipedia.org/wiki/Roe_v._Wade

[82] https://edition.cnn.com/politics/live-news/supreme-court-roe-v-wade-abortion-case-12-01-21/index.html

[83] https://www.nytimes.com/2021/11/27/opinion/roe-abortion-dobbs-scotus.html

[84] https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization worth a read.  The case was heard on December 1, 2021. Court observers said, based on their analysis of the questioning, that the six conservative members of the court were likely to find in favour of upholding Mississippi's law, though Chief Justice John Roberts appeared to support a solution that upheld the fundamentals of Roe v. Wade and Planned Parenthood v. Casey, while giving states the right to set restrictions on abortions up to as early as 15 weeks. The other conservative Justices appeared to be set to overturn Roe and Casey, based on these observations.


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