What does a post-Roe world look like for reproductive rights?

Julia Scovil, 22, in front of the US Supreme Court, cries during a candlelight vigil denouncing the ending of federal abortion rights. Picture: Brandon Bell/Getty Images

The historic fall of Roe V Wade, the legislation in the US that permitted abortion, had been predicted since May, when Justice Samuel Alito's draft opinion was leaked. When the news came through, I was with a barrister friend who was quietly, but unmistakably, delighted. She pointed out that the original Roe judgment was equally an example of judicial activism. In 1973, the judges found a right to abortion in the US constitution. In 2022, an ideologically different supreme court (or at least its majority) was simply doing the same. Her point is partially correct. What is different here is that the court, in a brazen assertion of raw political power, has debunked almost 50 years of precedent and is taking away an established right. Doubtless, these trainspotter arguments are inconsequential to the women who, on Friday, were called by an abortion clinic in Little Rock, Arkansas — a state with a trigger law allowing an instant ban—  to be told that the clinic was closing and that their appointments were cancelled. Other abortion clinics are now closing.

So, what does a post-Roe world look like for reproductive rights? A looming issue is what might happen to the right to contraception and the right to same-sex marriage. Like abortion, neither right is explicitly written in the US constitution. Instead, they rest on the unenumerated (unnamed) right to privacy and so are vulnerable to attack.

In Roe, Justice Samuel Alito differentiated abortion from other rights, like contraception and same-sex marriage, saying that abortion is different because it is about the taking of life, but this rationale does not stand up legally. The three liberal judges who dissented in Roe wrote that Justice Clarence Thomas is planning to revisit these rights. 

And on Friday, Justice Thomas said that gay rights and contraception should be reconsidered, because they "were demonstrably erroneous decisions". So, on any analysis the door is open, and these rights look more vulnerable.

A live issue is whether a state that bans abortion may try to extend its reach extra-jurisdictionally and prevent women who reside in that state from travelling to states where abortion is legal. Younger people may be surprised to discover that in 1992 this was a possibility here in Ireland, when, during the 'X case', it was openly debated whether pregnant women suspected of leaving the country for an abortion could be stopped in airports. Our judges looked into their crystal ball and found a limited right to abortion where the mother's life (as opposed to health) was at risk and thus saved the day by kicking a political hot potato down the road. At the time, a lecturer only half-jokingly told our law class, "The court was told to go into that room and not to come out until they had the right answer." 

 The reversal of Roe will affect the practice of medicine. It has been reported that some US medical students are already staying away from the increasingly contentious practice of obstetrics. Young doctors with conscientious objections to abortion duck clinical rotations to avoid assisting with abortions. Some also object to sterilisations. In certain medical institutions, this decision is poorly received, where abortion is seen as a part of healthcare and because fully-fledged doctors will encounter women in practice who have had abortions, even if they don’t personally perform abortions. But even before the Roe decision, doctors could not be legally forced to perform abortions. And in the US, a very small number of doctors, proportionally, perform abortions. According to a 2019 survey, just 24% of obs-gyns reported performing the procedure, although a further 10% to 20% were said to be willing to do so. Post Roe, in the roughly half of states where abortion is likely to be restricted or banned, medical residents will have to travel to learn to perform abortions, just as patients seeking the procedure will be compelled to travel.

Since 1981 the rate of abortion has roughly halved in the US, but women of colour are five times as likely to terminate a pregnancy as their white counterparts. This points to a social, racial, and economic aspect of abortion. Limited access to healthcare, contraception, and inadequate sex education mean that those on low incomes, in jobs without health insurance, are far more likely to seek abortions. Mississippi abortion law and their state law, which banned most abortion operations after 15 weeks, were the basis for overturning Roe. 

Pro-choice campaigners at a demonstration in favour of abortion in 1973, the year of the Roe V Wade judgment. Picture: Peter Keegan/Keystone/Getty Images

According to the Centers for Disease Control and Prevention, Mississippi has the highest infant mortality rate in the US, and black infants are twice as likely to die during their first years of life as white infants. In public schools in Mississippi, sexual abstinence is taught to avoid pregnancy and transmitted diseases. We remember how well this approach to sexual education worked in Ireland.

Some anti-abortion activists see abortion as a white supremacist method of wiping out the black race. This view is held by abortion opponent Alveda King, a niece of Reverend Martin Luther King. Also, another black anti-abortion activist, Catherine Davis, of the Restoration Project (a project to end abortion in the US), has said that the estimated 20m black abortions since Roe v Wade, in 1973, are more than the entire African-American population of 1960. It could be argued that if a white abortion opponent adopted this stance, the underlying assumption that black women lacked the critical thinking skills to avoid falling into the pitfall of 'murdering their babies' would be racist.

Roe shines a light on how judges are appointed, and in the US they are done so in a nakedly political way by partisan presidents. The Democrats will pack the Supreme Court with their people when the opportunity arises. This is not the case in Ireland. The new judicial appointments commission bill 2022, approved by the Government in March, allows for a "clear-merit-based process" for judicial appointments. This will change the way judges are chosen, with a new judicial appointments committee consisting of four lay members. The legal eagles have already pushed back against this change, which isn’t a huge surprise. Paying attention to how judges are appointed matters.

The tide against abortion is also turning in Europe. In Italy, abortion is quietly being rolled back, with it becoming increasingly difficult to secure at regional level. The political right in Italy has been energised by the US war over reproductive rights. Mario Adinolfi, leader of Popolo della Famiglia, a conservative Christian movement that opposes abortion, said that his group was "ready to ride the wave from the USA in a fierce battle against the right to kill a baby in the womb". In 2021, Poland enforced a near-total ban on abortions. The ring-wing government in Hungary has attempted to make legal abortion harder to obtain. There is a total ban on abortion in Malta, where, last week, a US tourist was denied a potentially life-saving abortion after she was admitted to the hospital; she had partially miscarried in her 16th week of pregnancy. This was despite the fact her baby had a 'zero chance' of survival. The traumatised woman was airlifted to Spain, even though it was believed that an "extreme risk" of haemorrhage and infection made flying medically dangerous to her.

In the meantime, spare a thought for the economically disadvantaged women of the US, because no matter what country you are in, no matter what the issue, the poor always end up paying for principles, heartfelt or otherwise.