The US Supreme Court appears poised to issue its most significant ruling of the century thus far. According to leaked documents, it has decided to repeal its 1973 decision in Roe v Wade that guaranteed a woman’s right to an abortion. This would be a major victory for American conservatives a long time in the coming. It would immediately have terrible effects for many American women, but in the longer term it might prove a blessing in disguise for liberals.
One of the most controversial rulings in the history of the Supreme Court, Roe v Wade declared that states could not outlaw abortion. It decreed that women had the choice to control decisions about their own bodies based on a “right to privacy” implicit in the US constitution. But this ruling was never accepted by religious conservatives, who were already outraged about earlier Supreme Court decisions such as a 1962 one that banned prayer in public schools.
The religious right supported Donald Trump's campaigns for president despite his outrageously un-Christian behaviour. And Trump delivered for them
Roe v Wade incited fundamentalist Protestants to political action. They jettisoned their long tradition of anti-Catholicism to ally with conservative Catholics who were also appalled by the court’s decision. By the late 1970s, the religious right had become a major force in American politics and an essential component of the Republican coalition that swept Ronald Reagan into office in 1980.
Ever since, the religious right has demanded that Republican leaders pack the federal courts with judges who would overturn Roe, becoming all the more insistent when some Republican appointees refused to do so. For this reason, the religious right supported Donald Trump’s campaigns for president despite his outrageously un-Christian behaviour. And Trump delivered for them. The repeal of Roe v Wade undoubtedly relied on the three justices Trump appointed to the Supreme Court.
Possibly, conservatives overreached. The Supreme Court could have decided merely to continue to chip away at the Roe ruling, allowing states to introduce greater restrictions on women’s access to abortions. Such a ruling would have escaped the attention of most Americans.
Nuclear route
Instead, the court seems to have gone the nuclear route, with potentially explosive consequences. This decision will be unpopular. According to a recent Pew poll, 59 per cent of Americans support a woman’s right to abortion in all or most circumstances, while 39 per cent think it should be illegal in all or most cases.
The US now returns to the situation that prevailed before Roe, where individual states will be able to decide on the legality of abortion in their own jurisdictions. Over 20 states are likely to ban abortion in all or most circumstances. Indeed, several have already adopted “trigger laws” that will go into immediate effect when Roe is officially repealed.
In the short term, this is a catastrophic setback for women’s rights. In many parts of the US, women will be denied the right to a legal abortion. Some states are likely to outlaw abortion even in cases of medical necessity. It is only a matter of time before women end up dying as a result.
Roe's fatal flaw was that it relied upon the courts instead of the democratic process. Liberals looked to the courts for action instead of making their case to voters
Women who lack the resources to travel to states where abortion is legal will be especially affected. Even before this court decision, many American women lacked reasonable access to an abortion but, with Roe still standing, much of the public had been blinded to this fact.
Roe v Wade was a great victory for the feminist movement. But it relied on the tenuous legal reasoning that Americans have a right to privacy that is not plainly outlined in the constitution. Roe’s fatal flaw was that it relied upon the courts instead of the democratic process. Liberals looked to the courts for action instead of making their case to voters.
Repeal the Eighth
In the wake of Roe’s overturning, American feminists should learn from the Repeal the Eighth movement. Over many years, Irish feminists organised to make abortion legal in this country. They persuaded many citizens of their viewpoint as well as the leaders of all the major political parties. In 2018, they achieved stunning success, with two in three voting for repeal. Because it was based on a democratic campaign, that victory is far more secure than Roe ever was.
In the US, the only likely path to securing abortion rights for all women is through Congress. And that will only happen if Democrats can increase their thin majorities in both houses. The midterm elections have been looking bleak for Democrats, but Roe might be the wake-up call they needed.
Americans might be reminded again of what is at stake at the polls. The Roe repeal comes as the Republican Party becomes ever more authoritarian in its insistence that the nation be ruled by white men. American democracy can be saved only with the help of a revitalised women’s rights movement. And just as opposition to Roe catalysed the growth of the religious right, its overturning might galvanise American feminists.