Roe vs Wade struck out as illiberal forces gain ground

There was no surprise about yesterday’s decision by the US Supreme Court to overturn the historic Roe vs Wade decision. The ruling, which ended half a century of constitutional protection for abortion, had been leaked the beginning of May. The ruling, from which three Democrat judges dissented, is expected to further divide the nation ahead of November’s midterm elections.

The verdict does not make abortion illegal in the USA but it does allow individual states to pass their own laws restricting abortion to the earliest weeks of pregnancy or situations such as rape.

The ruling is likely to stoke further tensions in a country that is increasingly polarised. It could also presage the overturning of other rights such as same sex marriage and access to contraception.

The Roe vs Wade decision dates to 1973, six years after Liberal MP David Steel introduced the Abortion Act as a private members bill in the House of Commons. Lord Steel has since argued for further liberation of the law. But abortion remains controversial in the UK with regular protests outside abortion clinics.

Abortion will be legal in some more liberal states, including California where Governor Gavin Newsom signed a bill on Friday to protect state abortion providers from liability when patients travel from states with a ban or restrictions in place. California, Oregon and Washington have issued a commitment to enshrine abortion rights across the west coast shortly after the ruling.

In other states, such as Louisiana and Missouri, abortion has already been restricted by laws automatically triggered by the cancellation of Row vs Wade. The Washington Post predicts that 13 states are likely to ban abortion immediately using trigger laws. These were joined by a further 13 states in asking the Supreme Court to strike out Wade leading to yesterday’s verdict. The i has a list of states likely to implement restrictions.

Abortion has long been a fault line in America politics. President Biden, a deeply religious Catholic, said the verdict stunned him:

Former President Obama said the Supreme Court has “relegated the most intensely personal decision someone can make to the whims of politicians and ideologues:

However, former President Donald Trump told Fox News: “This is following the Constitution, and giving rights back when they should have been given long ago,” adding “God made the decision.”

There are health implications in restricting access to abortion. Costs and access to health care are major factors in the high rate of maternal deaths in the USA, where women have the highest rate of maternal deaths among high income countries – 23.8 maternal deaths for every 100,000 births compared to 6.5 in the UK. Black women are nearly three times more likely to die from pregnancy-related complications than white women (55.3 per 100,000). Academic have warned that abortion bans will increasing the maternal mortality.

Access to abortion around the world is varied: “Countries like the US, Poland and Russia are taking steps backward [but] gains are being made in places such as Ireland, Colombia and Argentina.” The United Nations Fund for Population Activities (UNFPA) fears that more unsafe abortions will occur around the world leading to more preventable deaths if other nations follow the US lead of restricting abortion.

The Supreme Court tilted to the right after Donald Trump appointed three right-leaning judges, all of whom supported yesterday’s ruling. The court opinion was written by Justice Samuel Alito Jr. who wrote that if women don’t like the decision to give states the power to decide whether to allow abortions, then they should vote. The dissenting Democrats said:

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. [The ruling] says that from the very moment of fertilization, a woman has no rights to speak of.”

The fundamentalist approach the Supreme Court is taking to the Constitution and Bill of Rights has been seen in two recent cases. On Thursday, swept aside limits on carrying a concealed gun in public in New York. Last December, it refused to suspend a Texas law that pays a bounty to citizens who prosecute mothers who go out of state for an abortion.

Democrats fear Friday’s ruling on Row vs Wade could embolden the Supreme Court to repeal other liberal measures on same-sex marriage and contraception. There fears also that the reputation of the court itself could be undermined.

There were protests across the USA yesterday as well as rallies in support of the verdict (along with expressions of outrage at Glastonbury). Politicians are already signalling that this will be an issue in the midterm elections though they may find voters more concerned about rising fuels prices and the cost of living.

* Andy Boddington is a Lib Dem councillor in Shropshire. He blogs at andybodders.co.uk. He is Thursday editor of Lib Dem Voice.

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26 Comments

  • Andy David Steel’s Abortion Act was 1967. Part of a set of acts that coincided with great social changes in the 1960s – abortion, abolition of the death penalty, legalisation of homosexuality, race relations act, sex equality

  • @Rob Renold – thanks for spotting. Now corrected.

  • John Lib Dem 25th Jun '22 - 11:45am

    Abortion is not ‘controversial’ in the UK. Our abortion laws are some of the most liberal in the world. The numbers picketing abortion clinics are relatively tiny. There is no public or parliamentary appetite to weaken abortion rights here.

    What has happened is a devestating step back for women’s rights in the US. And it is women who are impacted. Anybody arguing otherwise helped make this happen – you can’t defend women’s rights if you refuse to recognise who the women are.

  • Brad Barrows 25th Jun '22 - 12:09pm

    The 1973 Roe v Wade decision was controversial because it removed the power to decide on whether, and in what circumstances, aborting a pregnancy should be permitted, from the individual States to the Supreme Court itself. The judgement recognised that there were competing interests – the interests of the pregnant woman against the interests of the unborn child – but decided that States and their voters should not be allowed to decide on where the balance between these interests should lie. This 2022 judgement has returned the power to decide on this issue to the individual States. While some individual states want to outlaw the procedure except to save the life of the mother, other states wish to extend the right to abort a pregnancy (and for the abortion to result in the death of the unborn child) up to the point of birth. The 2022 ruling does not require any particular outcome – it merely returns the issue to be decided at State level.

  • Whether being pro or anti-abortion is liberal or not is very debatable.

    Irrespective which side of the abortion side you fall on, it isn’t correct that things such as abortion (or same-sex marriage) are de-facto legislated by judges, not democratically elected parliaments. Moving this out of being legal based solely on a Supreme Court ruling, and into the hands of democratically elected parliament(s) (federal Congress or state legislatives) is actually the correct thing to do. The Democrats have a majority in Congress (and a casting vote in the Senate), so there isn’t anything to stop them passing (or attempting to pass) the legality of abortion at federal level (which is the correct way to legislate), and most states can pass abortion laws in line with Democrat policy

    The legality of abortion should never have been legistlated by judges.

  • James Pugh: Whilst it would be possible for the House to pass legislation on abortion, the Senate will not do so, because of the filibuster which requires 60 senators to stop it. Apart from that I doubt if all 50 Democrat senators are pro abortion and I very much doubt there are any Republican Senators who would dare to support it at all.

  • Brad Barrows 25th Jun '22 - 1:31pm

    @Mick Taylor
    Senator Joe Manchin of West Virginia is known as a pro-life Democrat Senator.

  • @Mick Taylor

    If there is no democratic will to legalise abortion through the democratic legislature, then on what grounds should it be legalised?

    Bypassing democratic processes by supporting de-facto laws (legal rulings) made by judges when you support the outcome becomes difficult if/when de-facto laws that you don’t like are made by judges.

    The decades long unwillingness for Democrats to get hot aspects of their policy platform passed through the democratic legislatative branch, instead politicising the judicial branch (Supreme Court) and getting what they want through that, is exactly why things like abortion and same-sex marriage are so precarious in the US, and exactly why Supreme Court appointments result in such revolting partisanship on both sides and the judiciary in the US is now so politicised. The Supreme Court’s primary purpose is to uphold the Constitution. Unlike gun ownership rights, the Constitution in no way grants rights to abortion (or same-sex marriage) hence why these should be pursued through the democratic legislature (Congress and Senate).

    I should reiterate that no matter which side of the abortion debate you are on, moving abortion rights out from being the granted by judges, and into democratic legislature is the correct, the liberal and the democratic thing to do.

  • Jack Nicholls 25th Jun '22 - 1:52pm

    With respect, and acknowledging that I don’t think any women have yet commented here, I want to engage a little with the ‘state’s rights’ argument from a left-libertarian angle. States are constructed entities, and may be assigned rights by consent and agreement, but do not inherently hold them. I would argue this is quite different from individual people, who have to my view inherent rights, even if their local government does not respect those inherent rights in its laws. One of those inherent rights is bodily autonomy. ‘State’s rights’ is in this instance a cover for bigotry and oppression, wherein the rights one has over one’s own body are dependent on other people’s sense of what is right and good. This is not liberal in any sense, it is a form of majority rule in which bodily autonomy is trumped by popular theocracy. I’ve never heard a state’s rights argument that wasn’t really a beard for something else, and in this case that something else is an effort to put women back in the box that some men think they should never have left. State’s rights be damned.

  • It’s hard for us this side of the pond to understand the excitement that the whole “state vs federal” debate. Personally I feel the liberal position is that democratic decisions should be decided at the most local level plausible.
    However, in this case peoples view on devolved legislation is coloured by their position on abortion. If you favour liberal abortion laws and your state has legislated otherwise then go out and campaign.

  • George Thomas 25th Jun '22 - 5:15pm

    “The legality of abortion should never have been legistlated by judges.”

    But safe abortion should be available to those who need one – need having fairly loose definition – and not dependent on employment status, wealth, family connection etc. How else does that happen in America other than legalisation by judges? Some rights need to be universal.

    Take a letter, Miss Jones, quote: I regret to inform you that the process of being pregnant, giving birth and raising a child will not become more affordable and safer nation wide – indeed the opposite will be true. No, backwards looking politicians, representing a minority, will choose instead to force people to have birth or, in case of some states, force people to prove they’re victims of rape in a horribly traumatic way.

    Why are poltical and religious extremists winning all round the world?

  • Brad Barrows 25th Jun '22 - 9:58pm

    @George Thomas
    “…safe abortion should be available to those who need them – need having fairly loose definition”
    If you believe that abortion raises no greater moral or ethical questions than having a tooth removed, then the question becomes purely one of fair and appropriate access to medical care. However, most people accept that abortion is different because the procedure is designed to end the life that is growing within the womb. Those moral questions, for some, begin at the point of conception though for most people the moral question becomes far more acute once the foetus passes the point of viability – where is could live independently from the mother. I would suggest that even the most pro-choice advocate must be morally conflicted by the knowledge that in the very few cases where a botched abortion, by induced labour, results in a baby being born alive, that that baby is merely placed to the side, without ‘medical intervention’, including any sustenance, until it weakens and ultimately dies. A successful abortion does not just end a pregnancy – it is also results in the ending of a life/potential life.

  • Andy Boddington 26th Jun '22 - 7:51am

    This is a very male dominated discussion, which is a surprise given its subject. We editors will hold back some comments from people who have already spoken to allow space for others to join the debate.

  • @George Thomas

    For it to be established that “safe abortion should be available to those who need one”‘ this needs to be done through the legislature (as it is in every country in the world where abortion is legal). This has never been done in the US, with abortion being legal based on a fudge at the Supreme Court decades ago.

    In liberal democracies, all major laws should be established through the legislative branch of government, not the judicial. This is not a controversial position. Even Ruth Bader Ginsburg was a critic of Roe vs Wade and had misgivings based on of these procedural concerns. As I said, whichever side of the abortion debate you are on, removing abortion rights from being solely dependent on a judicial ruling, and placing them (or attempting to place them) in legislative law, is the correct, liberal and democratic thing to do. If it can’t be done democratically, then questions need to be asked whether it should be done. The liberal position is to bring people along with you, not force and impose.

    RE religious extremists. There are religious people who are pro-abortion. And there are irreligious people who are anti-abortion. It is lazy stereotyping to park this is a religious issue

  • I find the term ‘pro-life’ a misnomer..There will.inevitably. be an increase in infant deaths and female suicides because of this ruling..

    When incest and rape (and combinations of both) are no longer grounds for termination the stress on those women will be nigh on unbearable..It seems that there will be no comparable assistance given for such victims; just a blanket ‘No!’ on prenatal action and postnatal care..

    Yet again the ‘Land of the Free’ is anything but..

  • @John Lib Dem
    Whilst I largely agree with you, the problem we have is many Conservatives and their backers like to follow the US. So I would not rule out the current government looking at the UK abortion laws, not because they need reviewing, but because it would ‘nicely’ distract the media and people from Boris and the various ‘reforms’ they deem are necessary to further the interests of their backers…

  • Charles Smith 26th Jun '22 - 12:25pm

    The nine justices of the U.S. Supreme Court, in a landmark ruling on Friday, made clear their views on abortion, with the conservative majority overturning the Roe v. Wade decision from 1973 and stripping away women’s constitutional protections for abortion.

    The vote was 6-3 to uphold Mississippi’s law banning most abortions after 15 weeks, but Chief Justice John Roberts didn’t join his five fellow conservatives in overturning Roe. He wrote that there was no need to overturn the broad precedents to rule in Mississippi’s favour.
    https://worldabcnews.com/what-each-conservative-u-s-supreme-court-justice-said-about-abortion-as-nominees/

  • Well, I worked as a Consultant in Reproductive Health. Unplanned and unwanted pregnancy has a devastating effect on women and I never saw anyone make their decisions lightly. It was gratifying to see attitudes and access improve during the course of my career. Our country is not the USA, not even remotely. I’m old enough to have worked with doctors who had experience of treating septic abortion following illegal backstreet ops pre 1967. It was common, horrendous and often fatal. My aunty died in these circumstances before I was born. Everyone knew where to go to get one according to my Mum. In contrast, termination of pregnancy these days in appropriate environments is much safer than childbirth and it’s long term effects are very few, again less so than following childbirth. The main point though is that women should have agency and autonomy. They must have the right to control their fertility. what’s going on looks like misogyny to me, not religion. what a relief to escape this horror, this retreat into the past and watch the wonderful Sir Paul at Glastonbury!!!

  • @JamesPugh

    “If there is no democratic will to legalise abortion through the democratic legislature, then on what grounds should it be legalised?”

    The US Congress could have codified abortion rights but that could still be struck down by the Supreme Court if it was challenged and judged to be unconstitutional .

    The Supreme Court has reversed its previous position about the significance and extent of the constitutional right to privacy in relation to a woman’s right to choose. Justice Thomas has signalled in his accompanying statement that this court will also if presented with the opportunity overturn the constitutional protection for equal marriage and same sex intimacy on the same grounds opening the way to making gay relationships illegal.

    This is coming about because of Christian extremism and the associated far right capture of the Republican Party,

    It is notable how many male Liberal Democrats seem comfortable with an established consitutional right being reversed by a hyper partisan court and the associated dreadful impact on women.

  • Many of the commentators above do not seem to understand that state legislatures in the United States are elected by “gerrymandered” districts that have been designed by the legislative majority itself to keep them in power indefinitely. In many cases it happens that a party that loses the popular vote gets a supermajority of legislative seats. There is no constitutional way in such states for popular opinion to be expressed via legislation. Democracy in the United States is an occasional and abnormal condition.

    Please do not blame the people of the United States for the anti-democratic structures they live under and cannot change.

  • Picking up the other thread in this case ie. the legal arguments being used to justify the decision, it is worth reading the full syllabus and opinion: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
    I’ve not read all of it, but the arguments being used to answer question 2: “Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” are highly questionable and should give pause to those who extoll the virtues of a written constitution – the arguments used by the Judges, clearly show how a Constitution written within the constraints of the 1780’s can be abused to support (or not in this case) a situation that would most certainly have been beyond the ability of the founding fathers to envision. Clearly to the Judges the 1973 Roe v. Wade verdict itself was “not deeply rooted in the Nation’s history and tradition”, probably because it happened within their lifetime.

  • Brad Barrows 29th Jun '22 - 6:46pm

    @Roland
    Yes, the Constitution makes clear that there are other ‘unenumerated’ rights beyond those identified in the text. The current Supreme Court believes that those rights should have been evident at the time the Constitution was first written – hence checking the historical record is relevant. The Constitution has a mechanism for amending the Constitution – those who believe that woman should have a federal constitutional right to access abortion (whether with or without limitations) should use that process rather than seek to have Justices appointed who are willing to twist the original meaning of the Constitution so as to get their preferred outcome.

  • @David

    You make a claim that because of gerrymandering, in many state legislative elections, a party loses the popular vote but elects a super majority.

    As I know, this is a patently false claim. Can you give examples to back this up please? The state that regularly returns a legislature majority to the party that (always narrowly) loses the popular vote, is Michigan. But this has nothing to do with gerrymandering. It is down to the overwhelmingly Democrat support base in its urban centres (Detroit, Flint and Great Rapids), with the rural seats being Republican, but not in such an overwhelming way. So the Democrats pile up the votes high in seats where it isn’t needed. Conversely the way to deal with this and get a more proportional state legislature would be unatural gerrymandering.

    Gerrymandering’s main problem in the US is at federal level elections, where the small number of large (in population and geography) franchises make gerrymandering practical and feasible. At state level, the constituencies are too small and socio-economic life too segregated for it to be feasible to do and have a meaningful impact

  • @Brad – I agree in principle with the approach, however, what I found questionable was that the judges made no attempt to qualify their terms of reference. So what exactly does “rooted” and “deeply rooted” mean, given it is generally regarded that happened over 40 years ago is history.

    Also the judges failed to take into account change! So given abortion has been around since whenever (and the legality will not prevent them from happening, hence why the decision was taken to legalise them in the first place was taken), however, medically ‘safe’ abortions only really became a reality in the 20th century. Which raises a question about anything that has changed since the Constitution was written – for example – does the Constitution give a right to free medical care ie. would Republicans object to an NHS style health service because free access to medical care isn’t deeply routed in the “Nations history”?

    I see we now have a similarly interesting ruling on power station pollution…

  • @Roland

    The method of drawing legal rulings from the Constitution by the Supreme Court based on whether or not something is rooted in the nation’s history, is purely for legal rulings in the absence of a steer from Congress.

    Congress can amend the Constitution, Congress can pass new laws.

    What the Supreme Court has (rightly) done, is that in the absence of reference to abortion rights in the Constitution, nor of it being rooted in the nation prior to Roe vs. Wade, was to remove the Roe vs Wade ruling, and essentially refer this back to the legislative branch of government where it belongs. In the absense of the federal government legistlating on abortion (there are very few federal laws that have been passed by Congress on this matter), this means it is left to individual states to legislate (the US system is highly devolved and decentralised, that is a good thing). The (Democrat controlled) Congress and Senate are free to pass (or attempt to pass) federal laws on this matter. That is the essence of liberal democracy.

  • Brad Barrows 1st Jul '22 - 10:04pm

    Hi Roland
    One key difference between Conservative and Liberal justices is that Conservatives usually interpret the Constitution on the basis of the words used and the meaning they had at the time they were written whereas Liberals usually consider whether the outcome of those rulings would be good or bad for society as they see it. That is why Democrat politicians continually demand that Justices be appointed who will stand up for the poor and ordinary people rather than for Justices who will seek to rule according to the meaning of the text. Liberal Justices also feel entitled to take into account changes in society in reaching decisions where Conservatives believe it is up to politicians to legislate to take account of changes in society and to use the Constitutional Amendment process to change or update the Constitution if that is required. We currently have a Conservative majority that may well push back on ‘over-reach’ that they believe has happened in recent decades, with the decision to return the power over abortion laws to the individual States being just one example.

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