What does the US Supreme Court’s decision to overturn Roe v Wade mean for abortion rights in the US and beyond?
What does the recent overturning of Roe v Wade mean for women’s right to abortion in the US?
Last Friday, five out of the nine judges of the US Supreme Court decided that a woman’s right to choose to have an abortion is no longer constitutionally protected.
In their controversial ruling in Dobbs v. Jackson Women's Health Organization, the judges stated that the reasoning in Roe v Wade was weak and wrong, and that overturning the decision would “return the issue of abortion to the people’s elected representatives”.
In the landmark Supreme Court ruling in Roe v Wade 1973, the right to abortion was interpreted by the judges as deriving from the Due Process Clause of the Fourteenth Amendment of the US Constitution, which prohibits the state from depriving persons of life, liberty or property without fair procedure. The judges opined this Clause provided a “right to privacy” which included a qualified right of access to abortion.
Broadly speaking the US has two levels of governance: federal (country-wide) and state (covering particular states). The effect of the Supreme Court’s 1973 decision was that individual states no longer had the freedom to outlaw or impose extensive restrictions on abortion, because women’s access to abortion was recognised as a constitutional right at the highest level.
Therefore, the effect of overturning Roe v Wade in Dobbs is not that abortion is now illegal in the US on a country-wide level, but that the right to abortion is no longer afforded protection as a constitutional right. Individual US states are now free to introduce legislation which makes abortion illegal there, and/or restricts access to abortion. A number of US states have reacted swiftly – with triggering legislation already outlawing abortion in 10 states, with 11 more expected to follow soon.
Do women have a right to abortion in England and Wales?
Abortion remains a crime in England and Wales and there is no legal right to have an abortion. The Abortion Act 1967 effectively decriminalised abortion in England and Wales in certain defined circumstances which includes the need for two doctors to sign off on an abortion.
The US Supreme Court decision last week has led to debate in our Parliament this week, with Labour MP Stella Creasey advocating for a “right to access to abortion” to be enshrined in the British Bill of Rights (the legislation which is intended to replace the Human Rights Act 1998), making it a fundamental right. Enshrining the right would send a clear signal domestically and globally, that Britain respects the rights of women.
Deputy Prime Minister Dominic Raab responded, however, by dismissing the need for such a right to be enshrined, stating that the position was “settled in UK law in relation to abortion… I don’t think there’s a strong case for change.” He added: “What I would not want to do, is find ourselves, with the greatest respect, in the US position where this is being relitigated through the courts rather than settled as it is now settled.”
Will the overturning of Roe v Wade impact women’s right to abortion in England and Wales?
The US Supreme Court ruling may seem a world away, however, experts including the British Pregnancy Advisory Service (‘BPAS’) believe it will have an impact in the UK, pointing out how anti-abortion groups in the UK work closely with their US counterparts including receiving funding and training. It is feared the perceived ‘victory’ for anti-abortion groups in America will embolden anti-abortion campaigners here to strengthen calls to re-criminalise abortion in England and Wales.
A number of anti-choice MPs have already sought to restrict women’s access in recent years, and only earlier this year, the Department of Health tried to revoke at-home early medical abortions, introduced to allow medical abortions at home after a phone or video consultation, during the first lockdown (March 2020). This was against expert advice from BPAS and the Royal College of Obstetricians and Gynaecologists.
The consequences of criminalising abortion are devastating for women and girls. Statistics show that in countries where abortion is illegal, this does not necessarily translate into a comparatively low rate of abortion, because women will often turn to other, unsafe, unsanitary means to terminate pregnancy. The World Health Organisation states that unsafe abortion is a leading cause of maternal deaths and morbidities for women, and can lead to “physical and mental health complications and social and financial burdens for women, communities and health systems”.
The government here could attempt to restrict women’s access to abortion at any point. The potential for the recent decision to act as a catalyst for change means we cannot be complacent.