By Stella Dziov, Blog Editor
The decision in Roe v Wade has been fundamental in the American justice system for protecting the right to an abortion. It has saved countless lives in conservative states that would not have otherwise had access to safe abortion facilities. Its legal standing is being threatened, however, as a draft decision has been leaked from the Supreme Court suggesting that it will be overturned. The consequences of this for future abortion regulation in America cannot be understated. It also sets a dangerous example for other nations regarding the revocability of abortion rights. Queensland’s progressive abortion policy offers a point of comparison.
What is Roe v Wade?
Roe v Wade was a landmark case for abortion in the early 1970s. Under the alias of Jane Roe, a woman from Dallas County, Texas, brought a federal action against the District Attorney of the county on the basis that the Texas criminal abortion statutes were unconstitutional. Roe sought an injunction restraining the defendant from enforcing the statutes. She wished to terminate her pregnancy but was unable to as her ‘life did not appear to be threatened’ by the pregnancy. She argued that the Texas abortion statutes were vague and violated her constitutional right to personal privacy, protected by the Ninth and Fourteenth amendment. Though there is no explicit guarantee of personal privacy within the constitution, it has been interpreted that personal privacy falls into this category but only if the personal rights are deemed ‘fundamental’ (paragraph 76).
What was the outcome?
The court held that the constitutional right to personal privacy could encompass a woman’s decision to terminate her pregnancy; however, they acknowledged that some state regulation of abortion is necessary. The court stresses that there must be a ‘compelling state interest’ for abortion legislation to be valid (paragraph 83). But regardless, policy that prevents access to abortion before the first trimester (approximately 24 weeks) is unconstitutional. The first trimester was chosen as the court relied on widely held medical opinion that this was the point of foetal viability, in that it is capable (with medical equipment) of surviving outside the womb. Prior to this case, there had been a trend towards liberalisation of abortion statutes. However, the vast majority of states had continued to have stringent laws requiring the mother’s life to be threatened for abortion to be permitted. Following this decision, cases such as Planned Parthood of Southeastern Pennsylvania v Casey have narrowed the scope of, but not overturned, Roe v Wade. Roe v Wade has been used to strike down multiple abortion laws in a range of states that would have greatly limited women’s accessibility to abortion.
Why is its decision being overturned and what are the consequences if it is?
This case has seen a resurgence of interest as in May 2021, the Supreme Court decided to review a decision from 2018 in their October term. This decision struck down a Mississippi state law that had banned most abortions after 15 weeks of pregnancy, despite the Roe v Wade minimum period of 24 weeks. Mississippi lawmakers hoped that an inevitable legal challenge would go to the Supreme Court where it had a greater chance of narrowing the scope of or potentially overturning Roe v Wade, considering the conservative majority of justices. It would be beneficial at this point to briefly explain how the Supreme Court operates in America. Australia’s highest court is the High Court whilst America’s is the Supreme Court. When a place becomes available, judges are appointed by the acting President with the guidance of the Senate. Justices have historically been chosen based in large part on how their political ideals align with the party in power. Due to various factors, this has resulted in a conservative majority in the Supreme Court of America. This has left the future of abortion law in America uncertain. If overturned, it is likely that many conservative states will introduce harsh restrictions, if not outright bans, on abortion.
Reflecting on the current state of abortion legislation in Queensland.
Prior to 2018, there were extremely limited circumstances in Queensland where a woman was able to legally attain an abortion. Section 282 of the Queensland Criminal Code dictated an exemption for surgical operations to terminate unborn children if it is to preserve the mother’s life. The Termination of Pregnancy Act 2018 (Qld) (TPA) went into effect on the 3rd of December, 2018 and was a drastic improvement from the previous protections afforded to women. A medical practitioner was able to perform a termination on a woman if it had not been more than 22 weeks, regardless of the woman’s reasons for termination (s 5 TPA). A medical practitioner may still terminate a pregnancy after 22 weeks if they have consulted with another medical practitioner and considered the surrounding circumstances such as the woman’s ‘physical, psychological and social’ health (s 6 TPA). A health practitioner may object to provide an abortion however, they must refer the women to another health practitioner who they believe would not object to providing one (s 8 TPA). The Act also prohibits protestors from standing outside abortion provider facilities to deter people from terminating a pregnancy (s 15 TPA). Although legalisation occurred significantly later than it should have, it does an incredible job at protecting women by ensuring they are able to access the medical attention they need. Comparative to America, termination of pregnancy has never been identified in the Constitution as a ‘fundamental’ personal right. As such, legislation legalising abortion cannot be constitutionally imposed upon all the states. This is why Queensland was able to have such harsh restrictions for so long. However, the Supreme Court has demonstrated that whilst precedent founded on the Constitution seems solid, nothing is entirely certain. This Queensland legislation has been fought for by progressive parliamentary representatives but also in the broader context of Australia. In 2021, South Australia was the last state to decriminalise abortion, demonstrating a cultural shift towards pro-choice. America appears to be much more divided on this topic, which is what makes Roe v Wade so tenuous in comparison to Queensland’s abortion legislation. The nation’s lack of majority on this topic means a change in power is able to threaten previously established women’s rights.
Concluding thoughts.
Roe v Wade has prevented strict abortion regulation in America for half a century and if overturned, will threaten the constitutional rights of countless women. The inevitable increase in regulation will only impact the health and safety of women seeking. Regulation does not prevent women from accessing abortions; it prevents them from accessing abortion safely. Queensland is very fortunate to have such progressive abortion legislation. Though its arrival was well overdue, it represents a cultural shift towards pro-choice that cements the legislation better. America’s divided views on abortion threaten the few protections women have been afforded.