Drafting Injustice: Overturning Roe v. Wade

Overturning Roe v. Wade: Spillover Effects and Reproductive Rights in Context

Background and Context

• The overturning of Roe v. Wade (1973) was foreshadowed by previous court decisions and political appointments.
• Planned Parenthood v. Casey (1992) allowed for abortion restrictions as long as they didn't pose an 'undue burden' on women.
  • These restrictions included parental notification and consent laws, mandatory ultrasounds, waiting periods, counseling, and Targeted Regulations of Abortion Providers (TRAP laws).
• The Casey decision replaced the trimester-based approach with the concept of 'viability,' which is more open to interpretation.
• Judicial appointments during the Trump presidency (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) made a full reversal of Roe v. Wade more likely.
• Dobbs v. Jackson Women’s Health Organization (2020) concerned restrictions that did not permit abortion beyond fifteen weeks' gestational age, violating the 'viability' standard of approximately twenty-four weeks.
• A leaked draft decision written by Justice Samuel Alito surfaced on May 2, 2022.

The Dobbs v. Jackson Decision

• The official decision in Dobbs v. Jackson Women’s Health Organization was handed down on June 24, 2022.
• Alito’s majority opinion in Dobbs v. Jackson differed very little from the leaked draft, with additions of critiques of the dissent by Justices Breyer, Sotomayor, and Kagan, and of the concurring opinion of Chief Justice Roberts.
• Chief Justice Roberts preferred to adjust the viability standard rather than discard the entire Roe/Casey framework.
• Justice Thomas suggested reconsidering and possibly overturning other rights, including access to contraception, equal marriage, and same-sex sexual activity.

Reproductive Rights in Context

• The fall of Roe v. Wade reveals the importance of defending reproductive rights in context, combining reproductive rights and reproductive justice.
• Reproductive rights are considered narrow, while reproductive justice offers broader lenses such as race, sexuality, socio-economic status, history, and ability.
• Rosalind Petchesky argues that control over one’s body is essential, but feminists need to communicate an alternative vision of women’s liberty beyond traditional liberal concepts.
• Reproductive justice considers race, sexuality, socio-economic status, history, and human rights.
• Emphasis on rights in context focuses on the political value of rights while committing to reproductive justice.

Rights Reversal in the United States

• Justice Alito’s majority opinion analyzes common law tradition, arguing abortion is not ‘deeply rooted’ in the country’s history and traditions.
• Alito mentions ‘modern developments’ that should make abortion unnecessary, such as improved societal attitudes, workplace anti-discrimination policies, parental leave policies, medical insurance guarantees, and adoption ‘safe haven’ laws.
• Abortion is a reproductive right for all women, but the US is moving in the opposite direction of many countries liberalizing abortion laws.
• From a reproductive justice perspective, there is a lack of 'modern developments' in healthcare access, support for children with disabilities and publicly funded contraception.
• Alito inadequately addresses the racialized dimensions of reproductive justice, focusing on oversubscription of abortion by Black women rather than the State providing too little of all other services.
• The overturning of Roe will disproportionately affect Black women due to inequality in access created by the patchwork of pro- and anti-choice states.
• States with trigger laws were positioned to immediately restrict abortion and criminalize providers.
• The spillover effects may increase the criminalization of abortion beyond the borders of the United States.
• This trend rejects the growing momentum towards calls for the abolition of the carceral state among feminists and instead increases state violence and the criminalisation of reproduction.

Spillover Effects: Canada and Latin America

• American women are familiar with border crossings into Mexico, where medication abortion is widely available.
• Abortion is decriminalized throughout all of Mexico due to a Supreme Court ruling in 2021, as well as in Uruguay, Argentina, Colombia, Chile, Belize, Cuba, and Guyana.
• The US defies the global trend towards the liberalization of abortion laws.
• This increases the likelihood that it will exacerbate problems in other areas, such as high maternal mortality rates with alarming racial disparities.
• Reproductive justice demands attention to racialized, socio-economic, ableist, gendered, and global dimensions of embodied experience and lived reality.
• Even if Alito’s ‘modern developments’ helped marginalized groups, a reproductive right to abortion is still needed.
• The reproductive justice framework reminds us to think about a community of others beyond our own borders.
• Loretta J. Ross and Rickie Solinger explain that reproductive justice argues that social institutions, the environment, economics, and culture affect each woman’s reproductive life.
• The end of constitutional protection for abortion in the US would likely have symbolic consequences globally, shaping the strategies and tactics of the transnational anti-abortion movement.
• 46 per cent of Canadians think that the situation concerning abortion in the US will have an impact in Canada.
• Some political parties have confirmed support for a woman’s right to choose, while others have asked members not to discuss abortion at all.
• Provincial governments have re-visited abortion policies, and pro-life actors are emboldened by the possibilities of a new jurisprudential hemispheric order.
• Pro-life groups may receive increased resources and encouragement from their American counterparts.
• The impact of the decision will be felt in countries like Guatemala, affecting women and their limited reproductive freedoms.