Encroachments on Women's Rights through Roe v. Wade

This podcast was recorded in Spring 2022. It has been edited for length and clarity.

Katie Vorhies: Hello everyone! This is Ava Lung and Katie Vorhies here with the Harvard Undergraduate Law Review, and today we will be examining the recent events surrounding the legalization of abortion. This has become a very important and fiery topic in light of several new bills, laws, and cases that have been brought forth. 

Ava Lung: But, before we dive into that, we would like to provide some background information on Roe v. Wade (1973) that will be important for the remainder of this episode. 

2. History and Background of Roe v. Wade 

AL: Here is a quick brief of the case. A suit was filed under the name Jane Roe against the District Attorney of Dallas County, Texas in 1973. The suit challenged a Texas law that made abortion illegal unless it was ordered by a doctor for the purpose of saving the woman’s life. Roe claimed that this law abridged her right to personal privacy protected by the 1st, 4th, 5th, 9th, and 14th Amendments. 

KV: The Supreme Court ruled in a 7-2 decision that the fundamental right to privacy that protects the woman’s choice to have an abortion is inherent in the Due Process Clause of the 14th amendment. However, there are caveats to this decision as the Court had to bear in mind the compelling governmental interests of protecting the health and safety of the woman and protecting the “potentiality of human life.” 

AL: Thus, because they claimed that the state has different interests at different times of the pregnancy, the Court concluded that regulation would be based on trimesters. As a result, during the first trimester, the state may not regulate the abortion decision and this decision is left to the woman and her physician. During the second trimester, the state can impose regulations on abortion that are reasonably related to maternal health. In the third trimester, the fetus is thought to reach the point of viability and the state can regulate abortions or prohibit them entirely. 

KV: So, why is this important? 

AL: Well, while Roe v. Wade is a landmark case for women’s rights, health, and privacy, it also has flaws that make it vulnerable. There are many arguments about why this is. Some focus on the fact that the case uses trimesters as an indicator for regulation and that this is outdated from a medical perspective, especially when speaking about viability. Others focus on the idea that the right to privacy claim is controversial, as it is in the penumbras of the Constitution’s amendments rather than the Constitution itself. Lastly, some center around the idea that governmental interests are too vague for this debate.

KV: So have there been any specific critiques of the case before the recent events?  

AL: I think that the late Justice Ruth Bader Ginsberg put it best. She said in a critique of the case, “Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” So, part of what makes Roe vulnerable is the structure. The right to abortion being woven into privacy rights was not as beneficial and strong as it would be if protected on the basis that its restriction impedes gender inequality under the Equal Protection Clause. So, perhaps if the Court declared the Texas law unconstitutional under the Equal Protection Clause, which would have legalized abortion rather than the regulations set forth in Roe v. Wade, we might not be seeing the controversy and criticisms of the case today. 

3. Contemporary Cases in the Reproductive Rights Landscape

KV: Unfortunately, that is not the case because we have seen Roe v. Wade (1973) tested recently. One example that has been gaining a lot of recent media attention is the Texas Heartbeat Bill. On September 1st, 2021 a Texas Law (S.B.8) went into effect, making it illegal to provide an abortion without determining whether a “fetal heartbeat” is present. This law makes no exceptions for rape, incest, or age. At 6 weeks, advanced ultrasounds can detect fetal electrical signals, but a heart is not yet fully formed. The implications of this law make it quite difficult for women to obtain abortions as many women are not yet aware of their pregnancy after just six weeks. It is estimated that this stipulation would ban about 85% of the abortions that would have otherwise taken place under existing federal law which restricts abortions within the second trimester, at 20 weeks. 

AL: How should we view this from a legal perspective? 

KV: The question remains as to whether this is a violation of women’s constitutional rights. Many argue that the law is so stringent that it is practically impossible to obtain access to an abortion at all unless you have the fiscal ability to travel out of state and this leaves low-income individuals without access to medical care. This question is also relevant to the Mississippi abortion ban, which will be heard this summer in Dobbs v. Jackson Women’s Health at the Supreme Court.

AL: What other effects might this Texas Law have? 

KV: It impacts not only women but all those who may assist in the process of providing an abortion. Family members or medical professionals who perform illegal abortions are the ones legally culpable for the offense, rather than the individual who received the procedure. The law allows for private citizens to file suits against these individuals. If the plaintiff wins, they are awarded $10,000 plus attorney’s fees. If the suit is against a provider, their entire clinic will be shut down. This creates an impossible dilemma for medical providers. By providing an abortion to a woman in need, they put their clinic and reputation at stake. The disincentivization that this law creates for anyone to aid in the process of obtaining abortions is reminiscent of a time, before Roe v. Wade when many women died attempting unsafe, at-home abortion methods. 

AL: What other states are seeing similar laws and cases being brought forth? 

KV: Alabama, too, is trying to find ways around Roe v Wade. In May 2019, Alabama’s governor signed the Alabama Human Life Protection Act which criminalizes abortion, even before the stage of fetal viability is reached around 24 weeks. Individuals who receive abortions face between 10-99 years in prison and those who provide the procedure face up to $60,000 in fines. However, the act of restricting abortion before fetal viability is one that the federal courts have historically ruled against. 

AL: Under Roe v. Wade, this proposed Alabama law seems unconstitutional, right?

KV: Well yes but. there is a considerable faction of individuals who do not share this view, as demonstrated by this bill passing through both chambers of the Alabama legislature. Alabama representative Terri Collins, who introduced the bill, even stated that she hoped the law would lead to a legal challenge that would overturn Roe v. Wade. However, the bill was criticized by both democratic and republican representatives, and by October 2019, a preliminary injunction was put into place against it. 

AL: Now, Roe v. Wade and the right to abortion are facing their biggest challenge yet as Dobbs v. Jackson Women’s Health is heard by the Supreme Court. This case involves a Mississippi abortion ban that will directly challenge Roe v. Wade. Mississippi appealed a lower court decision that struck down the state’s law banning abortion after 15 weeks of pregnancy, ruling that the law was unconstitutional. The state is asking the Court to uphold its abortion ban and overturn Roe by finding no constitutional right to abortion. This is the first time since Roe that the Court is ruling on the constitutionality of a pre-viability abortion ban. 

4. The Consequences of Overturning Roe v. Wade

KV: What are the implications if Roe is overturned? 

AL: Well, a recent draft from the Supreme Court was leaked and suggests that this could be the reality. If it goes through, currently, 24 states and three territories could take action to prohibit abortion, and 12 states have trigger bans in place to ban abortion immediately. From a legal perspective, all cases that involve Roe are jeopardized. These include Planned Parenthood v. Casey (1992), which protects several rights involving women’s rights, health, and privacy.

Overall, a decision to overturn Roe v. Wade (1973) could have severe legal and societal consequences, aside from losing the right to abortion. From a legal perspective, the laws that have been previously mentioned, specifically those from Mississippi and Alabama, put stare decisis into question by contradicting precedent. From a societal perspective, this decision would perpetuate socioeconomic inequality since many people do not have the privilege to leave their state to obtain access to such services. Furthermore, if individuals do have the resources to travel to another state, the states that legalize abortion will have an increased demand which will decrease the value of care for everyone. 

KV: Currently, there have been several protests in response to this case. Pro-choice advocates argue that the right to choose is central to women’s bodily autonomy, and as a principle of having control over one’s own body, this abortion ban is unconstitutional. However, proponents of the abortion ban hope that these additional restrictions will decrease the number of abortions overall. In June 2022, the Supreme Court could set a new precedent and change what this country has considered to be central to women’s rights up until today.