Decoding the abortion tussle as Roe v Wade likely to be overturned

WASHINGTON: As Politico, a news site, accessed the draft majority opinion of the US Supreme Court on abortion, a huge political and legal controversy broke out in the country over the roll back of protections related to abortion that have held steady for close to five decades in the country.

To be sure, there is no formal verdict yet and the draft majority opinion is subject to changes but most observers believe that given the current composition of the court — there are five conservativeleaning judges, a Chief Justice closer to the conservative end of the spectrum and three liberal-leaning judges — a roll back of abortion rights in some form is likely.

Here is an explainer on the existing legal framework, the thrust of leaked majority opinion, and its significance for American politics and legal jurisprudence.

What is the current legal framework on abortions in the US?

In 1973, the US Supreme Court — with a 7-2 verdict — declared abortion to be a fundamental right, and located it within the right to privacy, in the historic Roe v Wade case that has come to define American jurisprudence for five decades.

The case involved a legal challenge by a single pregnant mother (her legal pseudonym was Jane Roe) against Texas’s abortion laws (the case was filed against Henry Wade, the local district attorney). The court turned to the 14th amendment to the US Constitution, which held, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”, and located a woman’s right to abort within the right to privacy.

The court advocated the right on the grounds that having unwanted children may force upon the woman “a distressful life and future”, cause psychological harm; tax her physical and mental health, among other factors.

At the same time, the court held this was not an absolute right and sought to balance it with the right to maternal health and foetal life. To do so, it devised a threefold framework. During the first trimester of the pregnancy, states could not impose any restriction on abortions; in the second trimester, it allowed states to impose narrow restrictions but only to protect the mother’s health; and in the third trimester — which the court saw as the stage when the foetus became viable — the court allowed for legal prohibition of abortions.

In a subsequent case, Planned Parenthood v Casey, in 1992, the court upheld the essence of the Roe v Wade verdict.

A plurality of opinion said that the essence of the 1973 decision was that women could abort before foetal viability without undue state interference, the state could impose restrictions post viability but while making exceptions for the woman’s health, and the state had legitimate interest in protecting the mother’s life and foetal life.

But in this 1992 case, the court abandoned the trimester framework and prioritised the idea of foetal viability, declaring that medical advances had shown that viability kicked in around 23-24 weeks rather than 28 weeks as upheld by Roe v Wade.

This opened the door for states to begin imposing restrictions to safeguard foetal life, prior to the end of the second trimester, and has been the dominant legislative framework so far.

Why is abortion up for hearing and what is the draft majority opinion?

Abortion has remained one of the most contentious and divisive issues in American politics, with Republicans and the Christian Right seeing it as an assault on the right to life, while Democrats, liberals, and women and human rights groups seeing it as a fundamental human right inexorably linked to the right to choose. In recent years, as polarisation has deepened, a range of Republican-dominated states have brought in restrictive legislations which limit the right to abort.

A Mississippi legislation banning abortion beyond 15 weeks was challenged and heard in the Supreme Court at the end of last year.

It was in response to this case that a majority of the bench, according to Politico, backed a draft opinion penned by justice Samuel A. Alito Jr., justices Clarence Thomas, Neil M Gorsuch, Bret M Kavanaugh and Amy Coney Barnett — all nominated by Republican administrations — backed the majority opinion, while the three Democratic administration-nominated judges — justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — are expected to dissent from the opinion.

The views of Chief Justice John Roberts, a Republican nominee who has adopted a more centrist position than his other conservative colleagues in the past, were not clear.

In his draft opinion, justice Alito has said that Constitution makes no reference to abortion, and, therefore, no such right is implicitly protected by any constitutional provision. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The judge claims that Roe v Wade imposed “the same highly restrictive regime” on the entire nation, and effectively struck down the abortion laws of every single state, terming it as “the exercise of raw judicial power”.

The right to abortion, in justice Alito’s view, “is not deeply rooted in the nation’s history and traditions”.

“On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

If the draft majority opinion is upheld, it will not result in a nationwide ban on abortion. But it is expected to embolden conservatives to make an electoral pitch for nationwide restrictions.

For now, what the majority opinion will do is allow states to impose their own restrictions — and these will almost certainly, in Republican states, be more restrictive than what was laid out in Roe v Wade and Casey.

What is the political and legal significance of such a verdict?

The immediate impact of such a verdict — expected to be delivered this summer — is it will galvanise both sides of the political divide in the US. Republicans will see it as a victory, pass laws in state legislatures where they are dominant, tap into the passions of their base to call for a national ban, and consolidate their supporters in midterm elections scheduled for November this year.

For the Democrats, the verdict will become a key rallying cry in association with civil society, women’s groups and human rights organisations. The party will use the verdict to mobilise its voters to turn up and promise to protect abortion related rights in states and legislatures where Democrats are dominant.

The verdict is also expected to lead to a Balkanised legal terrain in the US — with Republican states imposing harsher restrictions and Democratic states opening doors for out of state residents who may wish to exercise their right. This geographical cleavage, already manifest in the electoral college, will deepen the fault lines in American politics.

And finally, the verdict will once again throw a spotlight on the role and composition of the US Supreme Court.

In a system where judicial nominees are picked by the party in power and then confirmed by the Senate, the court’s decisions are seen as almost entirely dictated on partisan lines.

With a Republican-leaning majority on bench, the court faces a crisis of credibility where critics see it as an instrument of advancing the political agenda of the Right by turning to a conservative interpretation of the Constitution.