Decades after it was heard, the Roe v. Wade lynchpin abortion case is still serving as a battleground for US legal wars.
This weekend, Sarah Weddington, the attorney who argued the key US abortion rights case, Roe v. Wade, in 1973, passed away. The Supreme Court decision remains at the forefront of division in America.
Weddington was just 26 years old in 1970 when she and fellow lawyer Linda Coffee filed a lawsuit defending the right of American citizens in all states to terminate pregnancies. She died on Sunday aged 76 due to health complications.
Roe v. Wade – the first case in Weddington’s career – is one of the most famous ones ultimately ruled on by the US Supreme Court. It is hailed as a major achievement by pro-choice activists and blasted as an unconstitutional example of “judicial activism” by their opponents.
What exactly is the case about?
The balance of power between the federal government and individual states is a sensitive issue in the US, and Roe v. Wade was testing that balance as it applied to female reproduction rights. Before it, each state was at liberty to regulate abortions of its own accord, and more conservative states like Texas opted for banning them in all or most cases.
The legal team representing ‘Jane Roe’ (a pseudonym for Norma McCorvey) wanted the Texas ban overturned, arguing that a woman’s right to terminate her pregnancy was protected under her constitutionally mandated liberty and privacy clauses.
The state, represented by Dallas County District Attorney Henry Wade, argued that states have the right to regulate medical standards and to protect the potential lives of unborn children.
What was the ruling?
The litigation went all the way to the US Supreme Court, which mostly sided with the plaintiff, ruling that deciding whether to terminate a pregnancy was indeed covered by her right to privacy. However, the federal judiciary stopped short of saying that women’s rights on the matter were absolute and granted that states could have a say on the treatment of unborn children.
The resulting legal framework divided pregnancy into three 12-week trimesters, with states given increasingly greater authority on regulating abortions depending on how far a pregnancy had progressed.
The framework was further updated by the 1992 ruling on the Planned Parenthood v. Casey case, in which a standard based on fetal viability outside of the womb was introduced.
Fight to overturn Roe v. Wade
Unsurprisingly for an issue as divisive and sensitive as abortion, attempts to overturn or water down Roe v. Wade began right after its passage. Conservative states tested its limits with laws that, for example, tried to throttle access to abortion clinics in their jurisdictions.
The landmark 2016 Supreme Court ruling on the Whole Woman’s Health v. Hellerstedt case, for example, forbade Texas from demanding that doctors performing an abortion had a right to admit patients at a local hospital. Justices ruled it put an “undue burden” on the patients.
The court’s composition itself has been subject to the public standoff over Roe v. Wade, with several Republican presidents tying their nominations of judges to their stances on abortion rights.
Donald Trump explicitly promised during a 2016 debate with Hillary Clinton to put “two or three” pro-life justices, saying that he expected Roe v Wade to then be overturned “automatically.”
Fresh anxieties
Despite the appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court during the Trump era, the abortion framework stands, but anxieties over its future have been running high. More expressive pro-choice activists have been predicting that the US could at any moment turn into Gilead, the fictional theocratic version of America from the ‘The Handmaid’s Tale’ books and TV series.
One source of their fears comes from Texas’ controversial abortion statute known as SB8, which uses an unusual approach towards enforcement of its anti-abortion provisions. It allows private individuals to sue providers for violations – a system that critics compared to issuing bounties on doctors, patients, and third parties involved in abortions. The Supreme Court is yet to rule on the constitutionality of the law, but it didn’t grant an injunction against it.
Another case comes from Mississippi, which passed a law that bans abortions after 15 weeks in a significant departure from the fetus viability standards set in 1992. The state wants the Supreme Court to abandon the Roe v. Wade framework and put a new one in its place.
What if it’s overturned?
Many conservative US states have restrictive ‘trigger’ abortion laws that would come into force if Roe v. Wade was no longer standing in their way. A handful have abortion bans on the books that have not been enforced since 1973. Liberal states, on the contrary, have corresponding abortion regulations that allow terminations with few if any restrictions and won’t be compelled to change them, whatever the Supreme Court decides.
It’s safe to assume that if Roe v Wade is overturned, existing divisions in the US would only escalate further.
What happened to ‘Jane Roe’
Norma McCorvey, or ‘Jane Roe’, turned into a vocal pro-life activist. Her image of a reformed sinner, however, was tarnished after her death in 2017.
In what was described as her “deathbed interview,” which was first shown in a documentary last year, McCorvey said her change of heart was motivated by financial incentives from anti-abortion movement leaders.
