Written by: Chiara Espinal
Edited by: Michael Shalonov
(ABC news)
The recent overturning of Roe v. Wade – the landmark Supreme Court case that conferred the right to an abortion – resulted in divided reactions toward what has become one of the most monumental Supreme Court decisions of the 21st century. On Friday, June 24th of this year, the Supreme Court overturned the 1973 ruling that granted legal protection of abortion rights for over 50 years. Citing the Constitutional guarantee to “liberty” as outlined by the Fourteenth Amendment, the Supreme Court’s ruling in Roe v. Wade asserted that the United States Constitution protects abortion “as an essential liberty” (“Roe v. Wade”). The Court’s reversal of Roe v. Wade leaves it up to the states to decide for themselves what action to take in regards to enforcing an outright ban on abortion – a ban which would force people to travel across the country to access a safe abortion. Perhaps more concerning is the reality that several states are weighing the possibility of prosecuting individuals who cross state lines to seek an abortion in states where abortions remain legal. Some states may even criminalize the doctors who perform procedures for residents of states where abortion is banned, leading us to the question of whether such bans are a violation of not only the right to privacy, but to human rights as a whole.
In 1973, the right to liberty and the protection of personal privacy was determined to encompass the right to decide whether to continue a pregnancy. For the first time in the history of our nation, reproductive decision-making was said to be a fundamental right in the same regard as the freedom of speech or freedom of expression. The Court conferred reproductive decision-making to the “highest degree of constitutional protection known as “strict scrutiny”” (“Roe v. Wade”), meaning that any attempts to interfere with or deny access to an abortion held legal consequences. The ruling of Roe v. Wade held that the Supreme Court would require a state to justify any “interference with the right to access abortion by showing that it had “compelling interests,” and held that no interest was compelling enough to ban abortion before viability,” (“Roe v. Wade”). In other words, after the point of viability, or the stage of development in which a fetus is capable of living outside the uterus, the state could interfere with abortion or take other actions to protect the life of the fetus. However, in some cases, abortions would be permitted to protect the life of the mother.
In many regards, the ruling of Roe v. Wade aligned with previous Supreme Court rulings of the era as far as protecting an individual’s right to privacy, especially concerning other deeply personal matters such as marital relations and contraception. Roe v. Wade played a central role in the advancement of gender equality within the political sphere. The passage of Roe v. Wade came at a time when abortions were banned by almost every state, except under extreme circumstances, which often led to the death and injury of thousands of women. While Roe v. Wade did make abortion safer and more accessible to women across the country, access to safe abortions for people in marginalized communities remained severely limited. The recent reversal of Roe v. Wade, however, will likely only contribute to the economic and racial divide in access to safe abortions – a result that can have dire consequences for people across the nation.
Since the overturning of Roe v. Wade, several news outlets have tracked the growing number of states that have outlawed abortions in the wake of that fateful day in June. Most abortions are now banned in at least 13 states, and the passage of new laws has restricted the procedure to even greater limits since the Supreme Court’s widely contested ruling. Thousands took to the streets of several major cities on Friday, June 24th – the same day that Roe v. Wade was overturned – but each for very different reasons. While anti-abortion protestors rejoiced and embraced at the news of the ruling, others gathered to express their disapproval. One protestor expressed the sadness she felt for women whose “lives will be destroyed” (Qiu) by the overturning of Roe v. Wade.
One of the first instances of a state court challenge in response to the overturning came on July 26th, 2022, when a federal appeals court allowed Georgia’s six-week ban to take effect for the very first time since it was signed into law by Governor Brian Kemp in 2019. The challenge asserts that Georgia’s state Constitution strongly enforces the right to privacy, which prohibits political interference in the decision of continuing a pregnancy. The challenge also maintains that Georgia’s six-week ban could be considered void due to its violation of the federal constitutional precedent put into place in 2019. Doctors and abortion advocates asked the court to block the law permanently due to this possibility. The six-week ban on abortions would effectively ban the possibility of an abortion after the first six weeks of pregnancy – a timeframe in which few women are even able to determine that they are pregnant.
The non-jury trial that was held before Judge Robert McBurney of the Fulton County Superior Court in Atlanta began with statements from groups in support of the dismissal of the case. The plaintiffs in this case, which include the Sisterstong Women of Color Reproductive Justice Collective and the Center for Reproductive Rights, posit that the six-week ban violates Georgians' fundamental rights to liberty and privacy under the state constitution. Chief Judge William Pryor of the Atlanta-based 11th U.S. Circuit Court of Appeals cited the "rational basis" for the law, referring to its interest in "providing full legal recognition to an unborn child," (Pierson) which Pryor wrote for a unanimous three-judge state panel.
In an unusual turn of events, the law later took effect after the 11th Circuit, making Georgia the latest state to enact the six-week “heartbeat” abortion ban. The current Planned Parenthood president and one of the providers in the lawsuit, Alexis McGill Johnson, called the result a “grave human rights violation,” and vowed that Planned Parenthood, along with its partners, “will do everything in our power to fight back and ensure all people can get the health care they need, regardless of where they live," (Pierson). Johnson’s statement sent a fervid message to anti-abortion leaders in Georgia and beyond. Organizations like Planned Parenthood have demonstrated time and time again that their goal of ensuring and protecting the reproductive rights of the individual – regardless of their socioeconomic status and state of residency – will not be hindered by the reversal of Roe v. Wade. While the reversal of Roe v. Wade has brought with it a set of grim possibilities for women across the country, examples of pushback from supporters of a woman’s right to choose demonstrate that the fight is far from over.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the RULR Editorial Board and Rutgers University]
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