If the supreme court overturns Roe v Wade, as a leaked draft opinion indicates, it will be a crushing blow to the fundamental right of women in the United States to control their own bodies. It is the grim culmination of a crusade by zealots, against the will of the majority, to risk the health, happiness and lives of women. An accelerating erosion of rights and services has already slashed access to abortions, and many feared that Donald Trump’s judicial legacy would be the curtailment or reversal of the 1973 ruling, which effectively legalised abortion nationally. But this text, obtained by Politico and written by Justice Samuel Alito, looks worse than expected. Excoriating Roe v Wade as “egregiously wrong from the start”, it abandons the issue to states – nearly half of which have, or will soon have, laws banning abortion.
Such a decision will force women to give birth in a country with high maternal mortality rates and no national paid maternity leave; it will risk lives as they access illegal abortions; it will threaten to criminalise vulnerable women and those who help them (and even those who have miscarriages); it will push yet more children into poverty. Experts warn that states are likely to pass further restrictions targeting those who travel to obtain abortions, or order medication to manage their abortions at home. These days there are new ways for women to obtain abortions, but also new ways to track them, and those supporting them. Overturning the five-decades-old decision could also help to pave the way for a nationwide abortion ban.
Moreover, it throws into doubt other established rights, such as gay marriage, which are similarly rooted in the right to privacy. Though it states that it does not do so – arguing that abortion is a unique issue because it involves the right to life or potential life – that is little reassurance. After all, two of the justices backing this decision were confirmed after describing Roe v Wade as “settled law”.
This catastrophic decision, assuming it proceeds, both highlights and solidifies the gulf between different Americas. First, the geographical division between states that ban abortion – home to the majority of women – and those that do not. Second, the socioeconomic and racial divide between those whose wealth and connections will allow them to access abortion, and the rest. Finally, it captures the gulf between American public opinion and the institutions that have been captured by the right because the electoral college, the Senate and supreme court are all skewed in favour of Republicans. A poll in January found that only 30% of voters wanted to see Roe v Wade overturned; 69% were opposed.
The move is also strikingly out of step with the rest of the world. With a few exceptions – notably Poland – the trend has been overwhelmingly towards the liberalisation of abortion laws, including in countries such as Chile and Ireland. The UN special rapporteur on the right to health, Dr Tlaleng Mofokeng, has warned that overturning abortion rights would set a dangerous precedent, as well as violate international human rights treaties, including the convention against torture.
But this decision, of course, can only be fixed at home. Democrats demand the codification of Roe v Wade, knowing that it would require overturning the filibuster, a Senate procedural rule. Calls for supreme court reform will gain ground, with the introduction of term limits a more straightforward move than expanding the court. Beyond the immediate crisis is the greater challenge of fixing a political system now tilted decisively towards Republicans through the systematic pursuit of power, from gerrymandering to voter suppression to control of elections themselves. The right’s victory is the fruit of an orchestrated campaign over decades; the fightback will demand equal ferocity and commitment. This blow could yet help to create some of the momentum required. November’s midterms will be the first test.