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Overturning Wade vs Roe ruling could set the U.S back by decades


The U.S Supreme Court is mulling overturning its findings on its landmark Roe v Wade ruling – a 1973 case that paved the way for women’s reproductive rights across the country.

FILE: Pro-life protesters stand near the gate of the Texas state capitol at a protest outside the Texas state capitol on 29 May 2021 in Austin, Texas. Picture: Sergio Flores/AFP

JOHANNESBURG – A potentially watershed moment in the United States’ legal history is currently playing out, with the country’s abortion laws on the cusp of being taken back 50 years.

The U.S Supreme Court is mulling overturning its findings on its landmark Roe v Wade ruling – a 1973 case that paved the way for women’s reproductive rights across the country.

If the court was to reverse the ruling – which looks to be the way it’s leaning at the moment – it would mean giving states within the country free reign over their abortion laws. And with pundits saying about half of them would either ban or significantly restrict access to abortions, the implications would be widely felt.

ROE V WADE MATTER

“Jane Roe” was the pseudonym given to Texan Norma McCorvey when she went to court in 1970 to challenge a state law that only allowed abortions “by medical advice for the purpose of saving the life of the mother”. The district attorney was Henry Wade.

After getting pregnant with her third child, McCorvey – who later went public with her identity – had decided she wanted to get an abortion. But as a result of the law, she was barred.

The U.S District Court for the Northern District of Texas found in McCorvey’s favour and essentially ruled that the law contravened her right to privacy and was, as a result, unconstitutional.

The state tried to overturn the ruling in the country’s highest court, the U.S Supreme Court. But it upheld the District Court’s findings.

In a 1973 judgment, Justice Harry A Blackmun, for the 7-2 majority, wrote: “We do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake”.

WHY IS IT IN THE NEWS NOW?

For the first time in the country’s history, the court in Roe v Wade recognised women across the U.S’ reproductive rights and made it illegal for states to enact law that “excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved”.

But it still left them with the power to restrict abortions. In 2018, Mississippi passed the Gestational Age Act, under which almost all abortions after 15 weeks were banned.

The Jackson Women’s Health Organization – the state’s only abortion clinic – took State Health Officer Thomas Dobbs to court over the Act and successfully stopped it from being implemented, relying on Roe v Wade. But Dobbs is now challenging the Roe v Wade ruling.

The case was heard on 1 December 2021 and an official judgment is still outstanding.

Earlier this month, Politico reported on a leaked draft majority opinion in which the court looked poised to rule in Dobbs’s favour.

This week, the Democrats moved to advance the Women’s Health Protection Act, which would have made abortion legal throughout the country and acted as a contingency measure were Roe v Wade to fall. But it was rejected by the Senate by 49 to 51.

If Roe v Wade is overturned, states would again be empowered to further restrict or even outright ban abortion. And according to the Guttmacher Institute – a leading research and policy organisation focussed on global sexual and reproductive health and rights – 23 states already have laws that could be used to restrict the legal status of abortion.

HOW DOES IT AFFECT SOUTH AFRICA?

South Africa has some of the most liberal abortion laws in the world. Up until she is 13 weeks pregnant, a woman of any age is entitled to an abortion on request, without giving reasons. Changes to U.S state laws won’t affect this.

It also wouldn’t affect U.S funding of local organisations. In 2017, former U.S president Donald Trump reinstated the Mexico City policy, which essentially blocks funding for pro-abortion organisations, after his predecessor, Barack Obama, repealed it. But current President Joe Biden has again repealed it.

The World Health Organization (WHO) advocates strongly for global access to safe abortions.

In March, it released new guidelines on abortion care.

These included “removing medically unnecessary policy barriers to safe abortion, such as criminalisation, mandatory waiting times, the requirement that approval must be given by other people (e.g. partners or family members) or institutions, and limits on when during pregnancy an abortion can take place”.

“It’s vital that an abortion is safe in medical terms,” Dr Bela Ganatra, Head of WHO’s Prevention of Unsafe Abortion Unit, said at the time.

“But that’s not enough on its own. As with any other health services, abortion care needs to respect the decisions and needs of women and girls, ensuring that they are treated with dignity and without stigma or judgement. No one should be exposed to abuse or harms like being reported to the police or put in jail because they have sought or provided abortion care.”

The WHO further pointed to evidence that showed restricting access to abortions didn’t reduce the number taking place.

“In fact, restrictions are more likely to drive women and girls towards unsafe procedures. In countries where abortion is most restricted, only one in four abortions are safe, compared to nearly nine in 10 in countries where the procedure is broadly legal,” it said.





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