Roe v. Wade overturned: The ruling is an unmitigated disaster for women’s rights in the US

As the Supreme Court strikes down Roe v. Wade, what kind of effect it might have on the political landscape in the US? And, BTW, how do you assess this verdict? As a legal one or perhaps more as a political one? Read a few comments.

US Supreme Court. Credit: https://www.supremecourt.gov/

If you enjoy what I do, please support me on Ko-fi! Thank you.

Ruth McClelland-Nugent, Department Chair of History, Anthropology, and Philosophy
Associate Professor of History, Augusta University

This ruling is an unmitigated disaster for women’s rights in the United States. The history cited in the leaked draft was appalling bad, and even historically incorrect in many places (such as where it falsely asserted no right to abortion under common law, when in fact, any historian of the 17th or 18th century in England or colonial America can attest abortion was perfectly legal up to “the quickening” when fetal movement could be detected). This ruling is one of the worst-reasoned I have ever seen.

This seems to be based primarily in partisan politics, which is also disastrous for the US Supreme Court, and indeed, our entire political system. The Supreme Court is supposed to be nonpartisan, and for many decades it has maintained a high level of trust. That is most certainly gone with this decision. It will benefit Republican politicians who have long promised to gut Roe vs. Wade, but the longer-term ramifications are incredibly troubling, for democracy, for religious freedom, for the health and welfare of women, for the rights of all Americans, and possibly for the functioning of our society itself.

There is majority support in the United States for abortion rights. But the way our voting works, it is possible for one party to gain control of a state legislature, and then artificially manipulate the voting districts (gerrymandering), access to voting (election days are not holidays here, so legislatures can restrict voting hours in such a way as to make it difficult for people to vote outside of work hours) and other factors that help favor one party over another. So, the upshot is that even though this ruling will likely be unpopular with a majority of Americans, we are now in a situation where that does not necessarily matter, politically speaking. And many states where Republicans control state legislatures have already passed so-called “trigger laws” that immediately outlaw abortion if Roe vs. Wade is ever overturned. So, here we are.

Of course, it could matter politically if enough people feel the bad effects of this ruling, then an overwhelming number of voters might make a difference. Let me talk about those potential bad effects.

For women, the ability to control the timing of their pregnancies and children is a fundamental part of being able to participate in society. Accessing education and employment is very difficult and will be impossible for some if they cannot control these factors. And today’s ruling overturned the understanding of Roe that there is a fundamental right to privacy, which is the right that guaranteed both abortion and access to contraception. Today’s ruling almost guarantees that more young women will have their educational goals and career prospects gutted–and in many cases, their male partners will also be limited in their choices. Imagine what that will not only to those young people as individuals, but to the children they will now be forced to support on lessened earnings with dimmer prospects. So, this is potentially really bad for American families–if not checked somehow, it almost guarantees more Americans growing up in poverty.

Let me also add: this ruling allows for 50 different abortion laws, which means that some states will probably still have reasonable access to abortion. But in states where no abortion is allowed, or it is outlawed after 6 weeks–before many women even know they are pregnant–things can be quite dire. Some states are trying to keep women from traveling to another state for an abortion. And because of the size of the US, traveling just isn’t feasible for some women, especially poorer ones.

But there will also be women with much-wanted pregnancies who will be affected. Those are women who WANT to have a child, but who discover their pregnancy isn’t viable. Many fetal abnormalities and other problems cannot be detected until around 20 weeks, so even in states where abortion is allowed quite early, women with late-pregnancy complications may be endangered. Some states have laws that restrict abortion so severely that doctors and other healthcare providers risk breaking the law even by performing an abortion to end a pregnancy that is clearly doomed, leaving women at a higher risk of fatal sepsis because they must continue to carry a dying fetus. In other cases, a pregnant person with cancer might not receive treatment due to the possibility it could end her pregnancy. (That is quite serious, because cancer can spread especially quickly in pregnant people.)

In short, by curtailing what doctors can do to help women at serious risk, this ruling could lead to deaths and disabilities that could easily have been prevented. Should this legal situation continue, fewer health care providers may even want to practice obstetrics or gynecology because of the legal risks. Since states like Texas now allow private citizens to sue in order to enforce their draconian abortion restrictions, this is not even just about the state monitoring the private lives of individuals and the professional work of health care providers–it’s neighbors spying on neighbors. There are even states like Mississippi who are trying to prevent pregnant people from leaving the state to have an abortion–something that could only be guaranteed by essentially forbidding pregnant people from crossing state lines for any reason!

I must pause and admit that as an American who grew up learning about totalitarian regimes mostly at a distance, that thought is a little startling to me. While I am old enough to understand that the notion of “American freedom” has always been complicated, I wonder how many Americans have really processed how much our lives might change now that the Supreme Court is suggesting we have no fundamental right to privacy. The ruling today suggested that other rulings which rely on that idea could be endangered. That includes rulings about birth control/contraception, but also about the privacy of American homes, rights to marriage, and a good deal more.

There are also troubling implications for our rights to freedom of religious conscience. The United States has never had an established religion, by design, and the Constitution’s first Amendment reads in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This ruling elevates a particular religious view–namely, the belief of many conservative American Christians that from the moment of conception, a fertilized egg is a person entitled to the use of another person’s body, even against the will of that second person (and even if it endangers her health). Many religious traditions do not share this understanding; in Judaism, for example, there is a general principle that one prioritizes the right of a life that is already here over a potential life.

A rabbi who counsels a Jewish woman with a dangerous pregnancy to abort is acting in accordance with their faith, but she will be unable to carry out this tenet if she lives in a state that does not permit abortions in those circumstances.

The notion that the fertilized egg is a person with the right to another person’s body against that person’s will also raises concerns about the 13th Amendment, which states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Can the law now require people to donate blood or organs to another person who needs it to survive? The potential implications are staggering if one person’s basic bodily autonomy can be breached in the service of saving another. Or are pregnant people a different class of person, who immediately surrender their rights upon becoming pregnant? Is the U.S. formalizing that women of childbearing age are second-class citizens who may be surveilled more closely and whose bodies can be endangered?

Also, what are the implications for the 14th Amendment of the United States, which ensures equal protection for all citizens? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This is all speculative, but I include these as examples of the potential Constitutional quandaries this decision brings the United States to. This ruling opens the door to some fairly radical re-interpretations that could certainly endanger other areas of American democracy and civil rights and liberties. As of today, though, most of those are only possibilities. But people who might think of Roe v. Wade as an isolated “women’s issue” should understand this particular ruling reaches far and wide into the American political and social way of life.

Let me come back to earth with some concrete facts. Out of curiosity, I looked up maternity leave and parental leave policy in Slovakia. 

Congratulations, because that sounds like a policy that is very family-friendly. 37 weeks of maternity leave (for a single mother), with provision for fathers to also take leave and extra leave for multiple births is great!

In the US, we are only guaranteed 12 weeks of unpaid leave (and that only applies to people working for employers with 50 employees or more).

I also looked up the maternal mortality rate for Slovakia. Again–it is impressive. 5 deaths per 100,000 births (in 2017). In the United States, it is 19.

So, pregnancy in the US is riskier than in Slovakia, and American parents have less time off of work to care for newborn children than in Slovakia. I don’t know a lot about your national social safety net, but in the US, as you know, we have a for-profit medical system based on private insurance; many people have poor access to healthcare, especially preventative care. We have no national system of child care subsidies, mother’s pensions, family benefits, etc. Some states do have more in these areas than others, but we lack a lot of the support for families that other nations ensure for their citizens. And the Republican party has long resisted investing in such benefits–although they have ALSO now succeeded in guaranteeing we will have more people having babies and needing to raise them, whether they are economically ready or not.

The Republican party also resisted attempts under Obama to ensure that all healthcare plans had to cover contraception–so even contraception is not easy for some people to access.

I could go on, but I am sure you see the picture I am painting. We are living in a country that is not very family-friendly, and not a great place to give birth. But more people will soon be forced to do so against their will. And even those who do want to give birth may find it a much riskier experience.

On a personal note, my husband’s daughter is 22 and plans to get married in a couple of years. Of course we always hope that our children will have good health, be able to have children when and if they choose to, and, if they are pregnant, have a safe birth. Unfortunately I am very concerned that my step-daughter’s chances for these things have just been diminished. And the same is true for many, many other young Americans right now.

Diana Carlin, Professor Emerita of Communication, Saint Louis University

President Biden said in his comments after the announcement that “this fall Roe is on the ballot.” That pretty much says it all regarding the political nature of the decision’s impact. What is posed by some as a moral issue that women need to decide within their own consciences will now be decided at the ballot box on two levels.

First, the decision puts states at the forefront of making abortion law. They have already done so with multiple restrictions since Roe that were deemed constitutional. The decision allows for total bans including rape, incest, and life of mother. Political arguments will be made in legislative and gubernatorial races in the fall which are likely to overshadow other serious issues that affect health care, education, and poverty programs all of which affect living children and families. Secondly, there are calls for a federal law and that impacts the rhetoric of Congressional elections. Each side will work to mobilize their voters. A majority of Americans, 66% according to a CNN poll and 64% according to a CBS poll  did not want Roe overturned. Pro-life groups are now saying that overturning Roe gives the public a chance to vote on their position in state elections and on state constitutional amendments. The political rhetoric is already flowing. Where women fit into the political landscape remains to be seen as women are not monolithic on this issue; however, pro-choice women have not been as invested in politics when Roe appeared guaranteed. This could result in mobilizing women who have not consistently voted but will on this issue now as they’ve come to understand that it does matter who is elected and who appoints justices just as the pro-life group as known for decades.

As for the legal or political nature of the decision, it is both. The majority claims it is a legal issue and that they are simply interpreting the Constitution which makes no specific mention of this type of right. The decision stated: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” Thus leaving decisions about privacy issues as guaranteed by the Constitution to politicians through legislation and ultimately to the people who elect them. Whether or not this decision suggests that the Court decides based on politics and not strictly on interpreting the Constitution, the pro-choice element will argue that it is political more than legal. However, the majority and its supporters will as vehemently argue otherwise. All of this and what will happen in the fall elections with the rhetoric, the outcomes, and the subsequent legislation following the overturning of Roe will only serve to further cement the political divide in the U.S.

Steffen Schmidt, Lucken Endowed Professor of Political Science, Iowa State University

This Supreme Court ruling on abortion is a VERY big societal change AND a political earthquake. Changing 50 years of a right that affects all women and their families will be THE biggest political issue of 2022 and the presidential race in 2024. 

Both political parties will refer to it in all upcoming elections. The Republicans and conservatives as a victory for the life of the unborn. For Democrats the loss of the right to privacy and the right of women. 

I cannot predict which party will benefit most. But public opinion in America has been favorable to LEAVING the abortion and privacy right in place. It will be an epic exciting political season with this issue at the top for many more years. 

My assessment as a Public Law and Government professional (my PhD from Columbia University) is that this was a huge mistake by the Supreme Court. Now, many of the rulings conservatives like, such as parental rights, the death penalty and others can be challenged.

Why? Because many rights are NOT “enumerated” in the American Constitution.   Which is a very short and old document that leaves much to “interpretation.” By the Supreme Court which itself ASSUMED it had the power to declare acts of government “unconstitutional” –  that power is NOWHERE in the American Constitution!  I speculate that this power too will be challenged and THEN the Court will become a weak and irrelevant entity!!  

I believe this ruling will lead to other high conflict issues such as the rights of gays and other issues  Americans want to put behind them as “settled” law. This will create huge tension, unrest, instability. Just what America’s adversaries and competitors want!

Because the Supreme Court ruling left abortion decisions to the 50 states and American Territories it will create a huge disparity and deep conflict between states. Very destabilizing. That may be the biggest take away from this decision.

Michael Kraft, Emeritus Professor, University of Wisconsin – Green Bay

The Court’s decision to end a women’s right to an abortion is not a surprise given that the tentative decision leaked some time ago, and most Court observers expected this outcome when the decision was formally announced. 

That said, the decision is still shocking. I believe this is the only time the Court has rescinded a right once granted, and in effect for the past 50 years. Normally the Supreme Court would honor such a long-standing precedent under its rule of stare decisis, and the recently appointed justices so indicated when they faced Senate confirmation. 

By acting in this way, the Court has made clear that the decision is less a matter of constitutional interpretation than a reflection of what can only be called the political views of the justices and of the elected officials who named them to the Court. That would be Donald Trump, who named three of the conservatives to the Court, and Senate Republicans who voted to put them on the Court while also rejecting the right of President Obama to name a justice at the end of his term of office or of Biden once he had been elected as Trump’s term was ending. That is, this is the conservative’s or Republican’s Court, and I suspect that the Republican Party will face the consequences of this decision in years to come, and perhaps even this fall.

I also fear that this decision, among others, will greatly harm the reputation of the Court and people’s willingness to respect an independent and politically neutral Supreme Court as legitimate. That is, the Court has greatly harmed itself, and people may now view the Court as merely another partisan and ideological institution that no longer merits its historic legal reputation.

Normally, a sitting president loses some seats in the House and Senate at the midterm elections, and this has been the expectation for this coming fall. While it is early to speculate, it could well be that this decision, which is clearly favored by most Republicans, will harm the party’s chances this fall. The party may well lose women’s votes that they may otherwise have held, and this is on top of the recent revelations by the January 6 committee that are so harmful to the party’s reputation. While Republicans may benefit from the state of the economy under Joe Biden (inflation, high gasoline prices, and possibly a looming recession), the Court’s decision and the recent reminders of Republican efforts to overturn Trump’s electoral loss could work the other way, and ultimately benefit Democrats.

Steven Greene, Professor of Political Science, North Carolina State University

This is a massive effect on the U.S. political landscape.  Now, I cannot say exactly how, but I can say this will substantially re-orient American politics around abortion and reproductive rights in ways heretofore unknown.  We will have policy debates in state after state over… banning abortion, codifying abortion protection, 6 week bans, 15 week bans, and everything in between.  We will have some states attempt to prosecute citizens for going to neighboring states to obtain an abortion where it is legal.  We will have states try and prevent its residents from important abortion drugs through the mail.  We will have federal and state election campaigns emphasize abortion and related issues in ways never before.  How this all turns out, nobody really knows, but this truly is an earthquake to American politics.

I will save the legal/constitutional analysis for such scholars, though I do think it is nevertheless fair game to say it is a big deal to overturn a 50-year old Constitutional precedent.  That’s not to say it should never be done, but it should certainly be done so judiciously.  Another important issue is just what this decision may portend for future decision on similar constitutional issues like the right to privacy (specifically, whether adults can obtain birth control of their choice) and laws around same-sex marriage and relationships.