The decision, when it came on Friday, was not a surprise. Even before the dramatic leak of Justice Samuel Alito’s draft opinion last month, it was widely predicted that the US supreme court would grab the opportunity presented by the Dobbs v Jackson Women’s Health Organization case to rescind the decision made in 1973 in Roe v Wade. This, after all, was the purpose of President Trump’s three supreme court selections – and the culmination of a decades-long campaign by anti-abortionists to return to states the authority to ban the procedure. But the announcement still came as a shock. The US’s global influence means that the decision to remove a woman’s constitutional right to abortion there reverberates far beyond its shores.
The speed with which multiple US states reacted is disturbing; already, abortion has been outlawed in 10, with 11 more expected to follow shortly. While all women should be entitled to control their own lives and bodies, there are instances when denying this is particularly cruel. Americans who oppose forced pregnancy and birth now face the horror of rape and incest victims, including children, being compelled to become mothers. The US is exceptional in its lack of federal maternity provisions; children as well as parents will suffer the consequences of unwanted additions to their families, with poor and black people the worst affected.
Early signs are that the most extreme Republican legislatures could try to block girls and women from travelling out of state for treatment, and impose further restrictions on care delivered remotely including medication sent by mail. The potential for personal data stored online, including on menstrual apps, to be used against women is causing justified alarm. Having relied on Roe v Wade to protect access to abortion for half a century, politicians can no longer do so. Abortion is now set to become a key issue in this autumn’s midterms.
How this pans out will depend on public opinion; polling data suggest that 85% of Americans support legal abortion in some circumstances, and Democrats hope that this could work to their advantage. But the anti-abortion right is a formidable force. With hindsight, President Obama’s decision not to codify Roe v Wade into federal law, and Justice Ruth Bader Ginsburg’s choice not to retire when he could have nominated a replacement, look like disastrous errors.
The three liberal justices who dissented said they did so with sorrow for “many millions of American women” and also for the court itself. With this decision, it has chosen to reopen deep wounds. The 14th amendment on which Roe v Wade rested granted rights to former slaves, and is the basis for other crucial decisions including on same-sex marriage. By dismissing Roe v Wade in the way that they did, and against the wishes of Chief Justice John Roberts (who argued to retain it, while allowing Mississippi’s 15-week rule to stand), the court’s hard-right wing has seized control.
Unprecedented division, and greatly increased hardship and risk for those denied safe healthcare, will be the outcome. While there is reassurance in noting moves elsewhere towards liberalisation, US anti-abortionists are far from unique, as tightened restrictions in Poland and the situation in Northern Ireland show. It is too soon to say whether Trump’s justices and their backers have overreached from an electoral perspective. If there is an early lesson to be drawn, it is that once gained, women’s rights must be constantly defended.