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Between Life and Liberty-Looking back at the US Supreme Court’s conflicting views on abortion rights

Revisiting 5 landmark US Supreme Court rulings on abortion that fractured both the Courtroom and the Court of public opinion for decades



By Kanav Narayan Sahgal


Kanav Narayan Sahgal is a Communications Manager at Nyaaya, Vidhi Centre for Legal Policy located in India. Kanav frequently reports on the global state of LGBT+ rights, with a focus on India. He can be reached at sahgalkanav@gmail.com. All views are personal.



Introduction


The leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organization indicated that the conservative-supermajority US Supreme Court was poised to overturn Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)- two seminal cases that affirmed in 1972 and then re-affirmed in 1992 women’s constitutional right to an abortion. The overruling indeed occurred on 24th June 2022 when the official Dobbs verdict came out.


However, this day was a long time coming. Lawyers Kathryn Kolbert and Julie F. Kay point out in their book, Controlling Women: What We Must Do Now to Save Reproductive Freedom that in 1992, Casey was set to be the case that overturned Roe. According to late Justice John Paul Stevens’s memoir (The Making of a Justice), Chief Justice William Rehnquist, joined by Justices Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas had initially agreed that the United States Court of Appeals for the Third Circuit had been correct in upholding most of Pennsylvania's restrictive abortion statues and that Roe v Wade should be overturned. The Chief assigned himself the job of writing the opinion which would overturn Roe. However, the story went that Justice Kennedy had a last-minute change of heart because of which he switched sides and joined the majority by giving them the coveted 5th vote to save Roe. What exactly caused him to switch sides remains unknown.


As of today, Roe and Casey stand overturned in a 6-3 vote. But how did the Supreme Court get here? It is quite fascinating to note that over the years, successive judgments have challenged and eroded at Roe, bit by bit.


Barely hanging by a thread, Roe reached a point of near-certain demise by the time Dobbs was being litigated. Below are five landmark abortion rights judgments, in chronological order, which shaped, and challenged, the reproductive rights of generations of women across the country.



Roe v. Wade (1973)


Roe v. Wade was a landmark Supreme Court case that legalized abortions nationwide by striking down a restrictive 1854 Texas statute that criminalized all abortions except those that sought to save the life of the mother. This 7-2 decision affirmed abortion as a component of the right to privacy but failed to explicitly mention where exactly in the Constitution either the right to privacy or the right to abortion was specifically located. In fact, the Court left it to the reader to decide whether these rights emanated from the Fourteenth Amendment’s concept of liberty, the Ninth Amendment’s promise of reservation of rights to the people, the First, the Fourth, the Fifth Amendment, or the “penumbras” in the Bill of Rights. It was precisely this vagueness that led to its eventual demise in Dobbs, 49 years later. In addition to legalizing abortions nationwide, the Court also devised a framework to balance the state’s interest in protecting fetal life and the mother’s interest in seeking abortions- which was the ‘trimester framework’. However, the Court did not clearly explain the basis for selecting this method for regulating abortions, which is why it was eventually scrapped 20 years later in Planned Parenthood v. Casey. According to this framework, in the first trimester, the abortion decision would be solely left to the mother and her attending physician. In the second trimester, the state may regulate the abortion procedure only if the regulations were reasonably related to preserving the mother's health. And finally, from the third trimester onwards (which is when the fetus typically becomes viable), the state may regulate or even proscribe the abortion procedure in the interest of protecting potential life, except in cases where the mother's life or health is at risk.



Webster v. Reproductive Health Services (1989)


13 years after Roe, the Supreme Court delivered a fractured verdict involving a 1986 Mississippi statute that read (in part) that “[t]he life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and well-being,” The statute went on to specify a number of restrictions on abortion access, such as mandating physicians to test for viability if they had reason to believe that the fetus was 20 weeks or older, prohibiting public employees and facilities from assisting or performing abortions except to save a woman’s life, and prohibiting the use of public funds, employees, or facilities to provide abortion counseling services (unless to save a woman’s life). The lower courts struck down each of these provisions, finding them in violation of Roe, however, the Supreme Court disagreed. In its fractured verdict, the court held, 5-4, that none of the provisions in the statute were unconstitutional or in conflict with Roe. Moreover, the Court refused to adjudicate the constitutionality of the preamble of the Mississippi statute (as the Court held that each state was allowed to adopt its own theory of life). So while the court upheld Roe, it chipped at parts of its core essence by arguing that the trimester framework was too “rigid” and resulted in “a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine”. Moreover, the court clearly stated that it disagreed with the notion that the state’s interest in protecting potential life should only start at viability. Thus, began the slippery slope that ultimately led to another landmark decision in Planned Parenthood v. Casey (1992) in which the Court eventually dismantled the trimester framework, while still, surprisingly, upholding Roe.



Planned Parenthood v. Casey (1992)


This case looked at the constitutionality of five provisions of Pennsylvania’s Abortion Control Act of 1982 that imposed varying restrictions on abortion access. As with Webster, the Court delivered a polarizing 5-4 verdict in Casey that upheld four out of five of Pennsylvania’s abortion restrictions, while simultaneously upholding Roe as precedent under the legal principle of “stare decisis” (Latin for “to stand by things decided”, or simply put, adherence to legal precedence). So while the Court upheld Roe, it extensively reexamined the 1973 judgment and scrapped Roe’s trimester system, and replaced it with an “undue burden framework” which prohibited individual states from placing substantial obstacles in the path of women seeking abortions before the fetus attained viability. While the Court held that women had the right to an abortion until viability, without undue interference from the state, it also specified that the state had legitimate interests from the onset of pregnancy to protect the fetus. Moreover, the Casey ruling failed to explicitly define what precisely constituted an undue burden and how it differed from a “due burden”. These ambiguities left the future of Roe in extreme jeopardy (as we will see in Dobbs). Many saw this judgment as a compromise – because it upheld Roe, but also scrapped significant parts of it by dismantling the trimester framework and upholding most of Pennsylvania’s restrictive abortion provisions.



Gonzales v. Carhart (2007)


By 2007, the Court had an even ideological split, with 4 liberal and 4 conservative-leaning justices, along with Justice Kennedy – who provided in most of the times the swing vote. In Gonzales, the court delivered yet another 5-4 verdict in which it held that the Partial-Birth Abortion Ban Act of 2003, enacted by George W. Bush was constitutional and did not impose an “undue burden” on women. The Partial-Birth Abortion Ban Act defined partial-birth abortions as “an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child’s body until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered infant”. While the lower courts struck down this Act for being too vague, imposing an “undue burden” on women seeking second trimester abortions, and offering no health exceptions for women, the Supreme Court went the other way; it upheld the Act and stated that the state did have interest in protecting fetal life and that no health exceptions were required for mothers because the medical community itself was split on whether Partial Birth Abortions were medically necessary to save the mother’s life or not. In a strongly worded dissent, Justice Ginsberg termed the Court’s decision as “alarming” because, for the first time since 1973, the US Supreme Court had affirmed a national abortion ban that could seriously jeopardize – perhaps even kill a labouring mother- thereby blatantly ignoring the central holdings of both Roe and Casey which affirmed to protect a woman’s health at all stages of pregnancy.



Dobbs v. Jackson Women’s Health Organization (2022)


The Dobbs case dealt with a 2018 Mississippi law called the Gestational Age Act that restricted abortions to 15 weeks, except in cases of medical emergencies or if the fetus had severe abnormalities (the Act made no exceptions for victims of rape or incest). By this time, the Supreme Court had a conservative super-majority, with Donald Trump having appointed 3 conservative justices on the bench during his one-year presidential tenure. In the predictable 6-3 vote along ideological lines, the Court quashed Roe and Casey altogether, arguing that the US Constitution never conferred a right to an abortion. The Court held that Casey simply upheld Roe on the basis of stare decisis, without questioning how the right to abortion found its way into the Constitution in the first place. Given that Roe had already withered away by then, it was all but expected for it to be eventually be overturned.


It should be noted that the Dobbs verdict did not ban abortions nationwide. Rather, it returned the issue to the states, conferring elected authorities with the power to decide whether they wanted to adopt a ‘pro-life’ or ‘pro-choice’ stance on abortion for their constituents. With the 2022 mid-term elections weeks away, abortion is definitely one of the key issues (among others) on the ballot as different states enact a patchwork of laws on abortion access across the country- leaving the United States as the fourth country in the world to roll back abortion rights since 1994 — along with El Salvador, Nicaragua, and Poland.


5 other important abortion cases for further reading:


Doe v. Bolton (1973)

City of Akron v. Akron Center for Reproductive Health (1983)

Stenberg v. Carhart (2000)

Whole Woman’s Health v. Hellerstedt (2016)

June Medical Services LLC v. Russo (2020)



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