The magnitude of what has just happened in America is still setting in, and while there are those of us who view the Supreme Court’s decision to overturn Roe v. Wade with hope, there are many others who – as underscored in protests in both America and Australia – see it as a tragedy. And their fears are not unfounded.
The decision came about as a result of the Court’s 6-3 ruling in Dobbs v. Jackson Women’s Health Organisation, which upheld Mississippi’s 15-week restriction on abortion. The Court found that the Constitution does not confer a right to abortion, and thus overruled the 1973 decision in Roe which had wrongly found this to be the case, as well as the decision in Planned Parenthood v. Casey, which had erroneously affirmed Roe two decades later.
From a purely legal standpoint, the decision was a long time coming. Roe was an ideologically motivated decision that interpreted a right to abortion in the US Constitution where one doesn’t exist, distorted the Court’s constitutional jurisprudence, and led to America having some of the most permissive abortion laws in the world. Indeed, even pro-choice legal scholars who support Roe’s practical outcome, agree that its legal reasoning was deeply flawed.
Eminent constitutional legal scholar, dean of Stanford Law School, and supporter of legal abortion John Hart Ely wrote that the decision ‘is not constitutional law and gives almost no sense of an obligation to try to be’. Another renowned constitutional law scholar and long-time advocate of abortion, Harvard’s Laurence Tribe wrote that ‘one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found’. Ed Lazarus, a pro-choice former law clerk to one of the Supreme Court Justices who authored Roe, agreed that ‘as a matter of constitutional interpretation and judicial method, Roe borders on the indefensible’. Even the late Justice Ruth Bader Ginsburg called Roe ‘heavy-handed judicial intervention’.
So, while there are those who lament the practical effect of Roe being overturned, to say that women have been robbed of their constitutional right to abortion is incorrect – as the Court in Dobbs found, and as legal scholars across the political and ideological spectrum have agreed for decades – the right never existed in the first place. Some commentators’ attempts to brand the decision as ‘judicial activism’ is also ironic, given that Roe and Casey were the epitomai of judicial activism.
The reversal of Roe does not mean that abortion is now illegal in America. What it means is that the issue of abortion will be returned to the States and their elected representatives. Some will choose to continue to allow abortion through all nine months of pregnancy and others will choose to restrict it. None of the States that currently limit abortion criminalise women and all allow exceptions where the pregnant woman’s life is in danger (although abortion is arguably never medically necessary to save a woman’s life).
So, what are the wider implications of the decision? Without a ‘right to abortion’ entrenched in law, over time we will hopefully start to see a different culture emerge when it comes to the treatment of pregnant women and their unborn children. And just like Roe (which has undeniably had a cultural impact outside America) and other aspects of American culture, hopefully this will trickle down to Australia and other parts of the world too.
There is no doubt that Roe – a decision which effectively legitimised abortion on demand – has had profound consequences for women and their unborn children. Millions of women have had the trauma of abortion piled upon often already difficult and painful circumstances, and millions more children have lost their lives. Furthermore, despite being championed as a victory for women’s ‘rights’ and ‘choice’, the decision has stalled decades of progress for women’s rights and welfare.
Ready access to the Band-Aid solution of abortion has removed the incentive for governments, employers, and men to properly support women who are facing an unintended pregnancy, and to provide a humane response to the underlying issues that drive women to seek abortion in the first place.
75 per cent of women seeking abortions in America are poor or low-income. In a study by the Guttmacher Institute, 73 per cent of women cited a lack of financial resources as the motivating factor for their abortion. Other reasons women request abortion include the impact having a baby would have on their education, work, or ability to care for dependants, being pressured into having an abortion by their partner or others, or undergoing an abortion to escape an abusive relationship. Qualitative data from the Guttmacher study ‘portrayed women who had had an abortion as typically feeling that they had no other choice, given their limited resources and existing responsibilities to others’. This is antithetical to the rhetoric that abortion promotes women’s choice and autonomy. As one women’s advocate has put it: ‘Abortion is a symptom of women’s oppression, not a solution to it.’
Over the weekend, protesters called for free, on demand abortions in Australia ‘in solidarity with US abortion rights protesters’. Abortion is legal throughout Australia, but protesters called for increased access to the procedure. However, ‘free abortions’ will do nothing to address poverty, unaffordable housing and childcare, inflexible study or workplace arrangements, absent fathers, domestic violence, or other social inequities which make women feel like abortion is their only ‘choice’. Rather, they will make it even easier for those in authority to avoid having to properly tackle any of these issues. The concept of ‘on demand abortions’ is also a far cry from the idea that, until relatively recently, abortion should be ‘safe, legal, and rare’. This approach is entirely at odds with current medical knowledge of foetal development and viability, advances in neonatal care, and the way we treat unborn children in any context other than abortion.
As a result of treating abortion as the solution to women’s inequality, women still have to contend with outdated, inequitable, male-oriented systems that are not designed to adequately accommodate and support them or their children during pregnancy and motherhood. This in turn has fed the lie that abortion is necessary for women’s equal participation in society and that children are an obstacle to women’s success and flourishing. And to accept this lie, our culture has had to accept another: that an unborn child has no moral status and that ending her life is justifiable so long as it’s a woman’s ‘choice’.
In this sense, I can understand why many women are scared and angry at the court’s decision. It will take time to undo these falsehoods in our culture. And while access to abortion may become more restrictive on the one hand, access to the support vulnerable women may one day need to continue a pregnancy and raise a child, is still not guaranteed on the other. That being said, I cannot understand the violent attacks on pregnancy support centres carried out since the decision was leaked, which are the very ones currently working to provide such support.
A lot of work needs to be done in order to counter the omissions of the past 49 years to make our society a truly welcoming one for women and their children. And not just at the grassroots level – where so much is already being done – but at the level of public policy, workplaces and individuals. However, if we get this right, our world will be so much better than any world Roe could have ever offered.
The reality is, that abortion is not, and has never been in the best interests of women. It is counter-productive to women’s health and welfare and betrays the basic feminist principles of non-discrimination, non-violence and justice for all.
Indeed, the early feminists opposed abortion, because they saw it for what it is – the failure of society to address the real needs of women who are often driven by desperation to seek abortion, a tool of oppression that frees men from responsibility, the perversion and denigration of motherhood, and the advancement of women’s so-called rights and freedoms at the expense of their children’s. Instead, they ‘focused their efforts on those educational, cultural, and legal means that would so improve women’s lives that they would not feel the need to seek abortions’.
It is an understatement to say that the issue of abortion provokes strong emotions and polarising views. In my work, I have found it to be the most divisive issue among women’s advocates, despite our ability to stand shoulder to shoulder on a vast range of other issues affecting women. But I also believe we share a lot of common ground. My hope is that over time we are able to open up a more compassionate, constructive dialogue around this issue, and to channel our shared passion for women towards working together to better support women facing unplanned pregnancies, so that no woman ever feels as if abortion is her only choice.
Rachael Wong is the CEO of Women’s Forum Australia
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