ANALYSIS: How the Roe v Wade decision unfolded in the US - from Roe in 1973 to now

It's been less than a week since the US Supreme Court overturned Roe v Wade - and reaction is continuing to flood in.

On 24 June 2022, the Supreme Court of the United States of America (SCOTUS) overturned Roe v. Wade with a 5:4 majority, just shy of the case’s 50th anniversary. Within hours of the verdict being handed down, the citizens and politicians of the United States had taken up battle lines over Roe. Dobbs v. Jackson Women’s Health Organisation, the case which overturned Roe, will likely go down in history as one of the United States’ most controversial court cases ever, more so than even Roe. This is reflected in the fact that the court ruled 5:2 in favour of a limited right to abortion in Roe, compared to the narrower split in Dobbs.

On 2 May 2022, a draft verdict for Dobbs was released to the public through Politico, which was met with outrage from all sides of politics. Many who fell on the left side of politics were concerned that overturning Roe would remove the right to have an abortion, and was a major step back for women’s rights. On the other hand, those on the right were angry that the privacy of the court had been violated by having the draft verdict leaked. Ironically, Roe itself focused on a constitutionally enshrined right to privacy.

Decisions by SCOTUS are often more politically controversial than they would be if the same decision was handed down in Australia by the High Court of Australia (HCA), Australia’s equivalent to SCOTUS. In Australia, judges are appointed to the HCA by the Governor-Ge

neral, acting on the advice of the Prime Minister and Cabinet. Although these appointments can be political in nature, with appointments including a Prime Minister, two Opposition Leaders, and multiple government ministers, this is nothing compared to the US system. In the US, judges are nominated by the President, but they must be appointed by the Senate. This means that there will be a hearing before the Senate Judicial Committee, and then a vote by the Senate. In recent decades, this process has become increasingly political President Donald Trump appointed 3 judges to SCOTUS during his term, and in every case the Senate split along party lines in their vote. Therefore, Democrats were concerned that Trump’s 3 judges, who were all appointed by the Republican-controlled Senate, would make conservative, Republican judgments on cases like the possible overturning of Roe. It was expected that Trump would only appoint Republicans to SCOTUS.

In Roe, the court had to consider the constitutionality of Texas’ abortion laws, which had criminalised abortion since 1854. Article 1191 of the Texas Penal Code (1961) banned using drugs, medicine, any form of violence or other means to undertake an abortion. Any person who provides the means for carrying out the abortion was also guilty, per Article 1192. Although the criminality of the abortion did not depend on whether it was successful, Article 1193 imposed a fine of $100-$1000 for an attempted abortion, whereas Article 1191 required a prison sentence of 2-5 years if the abortion was consensual, and up to 10 years if it was non-consensual. Finally, Article 1196 granted an exemption to the ban on abortions by allowing for an abortion to happen to save the mother’s life; however, if the mother died during the abortion, Article 1194 stated that it was murder.

Jane Roe, under that pseudonym, brought a class-action lawsuit against the State of Texas for banning abortions. As a pregnant, unmarried woman, she was not eligible for the Art. 1196 exemption, so was unable to have an abortion “performed by a competent, licensed physician, under safe, clinical conditions,” and she couldn’t afford to travel inter-state for an abortion. This class action was on behalf of women in her situation. Dr James Hallford was willing to carry out the abortion, but was prohibited by the Texas laws, so he also joined the case. Dr Hallford, who had two cases against him for abortions pending, protested against the abortion laws, because he said that they were too vague and it was often difficult to determine whether a mother was sufficiently at risk for Art. 1196 to apply. Both Roe and Dr Hallford alleged that their right to privacy, and Dr Hallford’s “right to practice medicine,” under the 1st, 4th, 5th, 9th, and 14th Amendments of the US Constitution, was violated by the abortion laws, with Dr Hallford adding that the “vague and uncertain” nature of the laws violated the 14th Amendment.

The 1st Amendment protects the rights of freedom of expression, speech, and religion from being infringed by the government. The 4th Amendment upholds”[r]ight of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” which is seen as a right to privacy from the government. If this right is violated, that person is entitled to compensation, known as damages, from the government. The 9th Amendment prevents rights contained in the US Constitution from overriding other rights; it prevents the US Constitution from creating a hierarchy of rights.

The 14th Amendment is broad, and protects the “privileges or immunities” and “life, liberty, or property” from breach by the US government “without due process of law.” Similar protections are found in the 5th Amendment, although they are more focused on judicial rights. The 14th Amendment allows laws that disproportionately breach the “liberty” of US citizens to be struck down as unconstitutional. What this means is that any violation of those rights cannot go beyond what is necessary; the violation must be “congruent and proportional.” If there is a valid reason for violating any rights, such as the safety of the citizens, the law violating those rights cannot do anything more than what is necessary to protect the citizens. This proportionality test has since been adopted in Australia for constitutional rights, such determining whether a law that limits the protection given to “trade, commerce and intercourse among the States” in Section 92 of the Australian Constitution is constitutional.

In Roe, the court considered three reasons for the creation and continuance of Texas’ abortion laws. It quickly dismissed the argument that they were implemented “to discourage illicit sexual conduct.” The court conceded that there was a medical concern at the time the laws were created, when the medical procedure of an abortion put the mother’s life at risk, but the court noted that with modern medical procedures, this risk is very low, especially in the first trimester. However, it was held that the State has a valid concern for the mother’s safety in the third trimester in particular. The final argument was the “protect[ion of] prenatal life.” The court considered whether the State had an interest in protecting prenatal life, if it was accepted that life began at conception, but found that it was better to argue that the State had an interest in protecting potential life.

Once the court has assessed the State’s interests, the majority considered the argument made by the State of Texas that “life begins at conceptions and is present throughout pregnancy.” At the same time, it addressed the debate over whether a foetus is a person, including whether a foetus is a person for the purposes of the 14th Amendment. With reference to the latter argument, the court concluded that because all other references to a person in the US Constitution relate a person after birth, the definition of a person in the 14th Amendment did not include a foetus. This meant that the ‘due process’ protection was not given to the foetus. The court was also unwillingly to decide when life begins, as there is no scientific consensus. This is because courts are unwilling to make conclusive rulings if there is not proof beyond all reasonable doubt in favour of that conclusion.

Finally, the court weighed up the interests of the State in preserving life, and potential life, the interests of the mother, and the need for the doctor to come to a conclusion without “State interference. This is where the proportionality test of the 14th Amendment is important. The court concluded that the State’s interest in preserving the life and health of the mother, based on medical knowledge of the viability of the foetus and the medical dangers of abortion, meant that the State could only limit abortions after the end of the first trimester. After the first trimester, the State’s interests became more “compelling,” such that the State could outlaw abortion when it was “necessary to preserve the life or health of the mother” from the start of the second trimester until the time at which the baby was viable, at roughly 24 weeks. After the foetus is viable, meaning it can live on its own, the State has the freedom to limit the right to abortion as it chooses. Thus, Texas’ abortion laws were unconstitutional.

Roe demonstrated that the 14th Amendment could give rise to implied rights. 19 years later, SCOTUS concluded in Planned Parenthood of Southeastern Pennsylvania v Casey that a pregnant woman had the right to choose to have a physician-assisted abortion. Other implied constitutional rights are the right to for homosexual couples to have sex and the right to have same-sex marriage recognised by law. Roe meant that there was a universal right to an abortion in the first trimester, and between the end of the first trimester and the start of viability the only lawful limitation was for the health of the mother.

In Dobbs, SCOTUS ruled 6:3 that the Mississippi Gestational Age Act (2018), which prohibited abortions after 15 weeks, except where the mother’s life or health was at risk, was constitutional. However, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett, JJ went further, and overturned Roe, as well as Casey. They were not joined in this by Roberts, CJ, who had agreed that the Act was unconstitutional.

Justice Alito, delivering the opinion of the majority, stated that although, before Roe, 30 States had universal abortion bans, many States had begun to reverse their bans. However, Alito, J, quoted White, J, a dissenter in Roe, by criticising the court in that case for their “exercise of raw judicial power,” further arguing that it imposed a universal, “highly restrictive regime,” and “struck down” the abortion laws of every State. Alito, J, held that neither the US Constitution, nor any State constitution, contained a reference a constitutional right for abortion. Indeed, with 30 States having it banned, an amendment to the US Constitution to enshrine the right to abortion would have fallen short of the majority of states needed to ratify that amendment. The historical analysis of the majority did not find any authority before Roe that supported the right to abortion. Therefore, the majority concluded that Roe, Casey, and the right to abortion were unconstitutional. Rather, this issue was to be left to the States to decide, as States’ rights issues, under the 10th Amendment. The 10th Amendment states that all rights and powers not included in the US Constitution are reserved for the States to legislate on or for the people to enjoy.

Three judges gave concurring judgments. Roberts, CJ, took a different, narrower, approach to his fellow judges in the majority. He supported dropping the viability test in favour of only granting the right to abortion should only “extend far enough to ensure a reasonable opportunity to choose” to have an abortion. However, he did not find it necessary for the court to reconsider Roe in its entirety. Thomas, J, gave a concurring judgment that supported a narrower scope for the 14th Amendment, suggesting that other implied 14th Amendment rights, like homosexual sex and same-sex marriages, were unconstitutional. However, it is worth noting that this was only said in obiter dictum, so is not binding, and it was only the opinion of one judge. It also stands at odds with the opinion of the majority as written by Alito, J, which stated that Dobbs would not go beyond abortion, so it would not be applicable to other 14th Amendment rights. Kavanaugh, J, reflected this in his concurring judgment but went further to state that the right to travel to other States for abortion would not be prohibited.

In Roe, the court split 7:2 in favour of Roe; however, they did not split along party lines. Of the two dissenters, one, White, J, was appointed by a Democrat, while the other, Rehnquist, was appointed by a Republican. Of the seven who formed the majority, only one, Marshall, J, was appointed by a Democrat. In contrast, the decision to overturn Roe in Dobbs split almost entirely along party lines, with all Republicans but Chief Justice French, a Bush appointee, agreeing to overturn Roe. French, CJ, a more moderate Republican, sided with the three Democrat appointees in opposing overturning Roe. However, he stood with the other Republicans in finding the Mississippi Act to be constitutional, making a clean party split on that matter. The Republican support for making abortion a States’ rights issue, not a Federal one, reflects the Republican belief in small government, while the staunch defence of Roe by the three Democrat appointees reflects the Democratic Party’s social liberalism.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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SOURCES:

Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

City of Boerne v Flores, 521 U.S. 507, 530 (1997).

Cole v Whitfield (1988) 165 CLR 360.

Commonwealth of Australia Constitution Act 1900 (Imp) ss 71(i), 92.

Dobbs v. Jackson Women’s Health Organisation, No. 19-1392.

Doe v Bolton, 410 U.S. 179 (1973).

High Court of Australia Act 1976 (Cth) ss 5-7.

Lawrence v Texas, 539 U.S. 558.

Mississippi Gestational Age Act (2018).

Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833 (1992).

Obergefell v Hodges, 586 U.S. 644.

Roe v Wade, 410 U.S. 113 (1973).

Texas Penal Code (1961).