An Overview of SCOTUS and the Constitution
The hammer blow has been struck. Nine people (eight of whom are men) in a nation of three hundred and thirty million have overturned one of the most important and politically symbolic pieces of legislation in modern American history: Roe vs Wade.
What does this mean? What will happen next? How did we get to this point? The history of abortion rights and the American judicial system are two incredibly controversial and complex topics, so begin untangling everything that’s just happened, we need to go back to two pivotal points in history: 1803 and 1971.
The Supreme Court of the United States (SCOTUS) was established in 1789, at the dawn of the new republic. As outlined in the US Constitution, it fulfilled the role of judicial branch of the government- this exists as a solution to the understanding that no legislature could contain a law for every conceivable case, therefore giving SCOTUS ultimate authority on such matters. To summarise, the President upholds the law, Congress implements the law, and the Court referees the law.
Within SCOTUS, there are nine permanent sitting judges, and each judge will serve until death or voluntary retirement. The President will then nominate a candidate of his preference (though cannot appoint judges outright- the Senate must confirm the candidates by a simple majority vote). It was not until 1803, in the case of Marbury vs Madison, when the Court gained the right of ‘judicial review’. This allows them to overturn acts of Congress that they deem to conflict with the constitution.
A crucial point to note here is that there is no mention of abortion in the Constitution- an unsurprising fact given it was published over a century before women’s suffrage. As the Court’s primary responsibility is constitutional law, this absence of clarity would result in dire consequences.
Roe vs. Wade
A century and a half later, Norma McCorvey- a Texan woman- sued her local district attorney, Henry Wade, claiming that her state’s abortion laws were unconstitutional. She had recently become pregnant with her third child but could not access abortion care (Texas only provided termination services if the women’s life was in danger). The district court ruled in favour of McCorvey, (who during the proceedings was referred to as ‘Jane Roe,’ hence Roe vs Wade) however the state appealed, and the case was presented before the SCOTUS.
However, as previously outlined, the Constitution has no mention of abortion- it was a legal issue that had not yet been formally addressed by federal court. An answer was found partly in the 14th Amendment, guaranteeing citizens a “right to privacy”, and so the Court returned an overwhelming 7-2 majority in favour of Roe, stating that in their considered opinion the clause covered reproductive choices.
This verdict repealed any existing laws against, and provided federal protection for, any women seeking an abortion. The case also became a symbolic piece of legislation: aiding the liberalisation of abortion laws internationally, from Latin America to Ireland. It also led to 50 years of moral and religious conflict over women’s bodily autonomy.
This year, as part of a wave of anti-abortion legislation, the state of Missouri aimed to pass restrictive legislation that appeared to violate Roe vs Wade. This was referred to the Supreme Court, who decided the existing legal precedent for abortion was unconstitutional. In a momentous decision, they voted to overturn the verdict which has safeguarded abortion rights in the US for two generations.
It is important to understand that by overturning this verdict, the Court has only removed any federal provision or protection for it. The legality of abortion will now be decided on an individual state-by-state basis, by their elected representatives.
26 of those states have representatives, constitutions, or pre-Roe laws that will, or already have, taken personal reproductive decisions out of the hands of women. Many of these states will outlaw abortion, some only allowing very specific conditions. Others will impose more restrictions on the time limit and circumstances of legal abortions. These states generally have conservative and Christian-heavy demographics, both areas from which powerful groups have sought to overturn Roe decades.
In Ohio, just hours after the verdict was announced, a law passed to ban all abortions after six weeks. For context, this is just a late period of one or two weeks- inconsequential for many who have irregular menstrual cycles, and therefore difficult to recognise in the legal abortion window. A ten-year-old girl was forced to fly from Ohio to Indiana for an emergency procedure as a result.
Abortion may not be banned across the board but accessing one- especially for women who cannot afford to travel out of state- will become increasingly difficult.
Membership of SCOTUS is largely based on the merit and legal background of the judges considered for the role and although the constitution does not place any restrictions on who a nominee can be (no judicial experienced is technically required), typical nominees are experienced and capable federal judges. However, judges remain political appointees selected by a partisan apparatus to promote an agenda that often conflicts with the opinion of the electorate. When picking a judge, the President and the Senate will both scrutinize a judge’s past decisions closely to best determine their future stances on cases referred to the Court.
Despite the fact multiple polls show the majority of Americans still support provision for abortions, what was once an engine for societal change and progress with verdicts such as Roe, Casey vs Planned Parenthood (which further established abortion provisions), and Brown vs Board of Education (which marked the beginning of the end of racial segregation) the Court is now a bulwark for conservatives and the Republican party, who have not won the popular vote in any presidential election since 1988.
Since 1969, the year Roe originally took legal action, the Republican Party has successfully appointed 16 judges; the Democrats, only five. This is largely down to luck: judges have happened to pass away or retire during Republican administrations.
Clarence Thomas is the longest serving judge on the Court, appointed in 1991 by former President George H.W Bush to replace Thurgood Marshall (who, prior to his judicial service, had successfully argued in support of Brown vs Board of Education in his legal career). Despite the testimony of Anita Hill and support of other witnesses who indicated that he had engaged in inappropriate conduct and sexual harassment, the Senate voted to confirm Thomas- but by the smallest margin since the 19th Century. Thomas denies the allegations to this day and is a staunch conservative.
Brett Kavanaugh’s nomination followed a similar trajectory. Kavanaugh was accused by multiple women, most prominently by Christine Blasey Ford, of sexual assault- this led to an FBI investigation that was later much lambasted for its unwillingness to investigate any of the potential falsehoods in Kavanaugh’s account. He was confirmed in October 2017 by a single vote, an even smaller margin than Thomas and the smallest of any Supreme Court nominee.
Neil Gorsuch was also appointed in 2017 amongst great controversy. The seat he filled had been empty for over a year, after President Obama nominated Merrick Garland in the deceased judge’s place- however, the Republican-controlled Senate blocked his confirmation by refusing to initiate the necessary hearings, despite the fact there was no tangible justification. Garland’s nomination-in-limbo lasted 293 days, by far the longest of any Supreme Court nominee, before it expired at the end of the congressional term in January, allowing President Trump to swoop in and nominate Gorsuch for the seat. Gorsuch is also a staunch conservative.
Amy Comey Barrett is the most recent addition to the court, filling the position held by Ruth Bader Ginsberg, a prominent liberal judge, six weeks before the election that put Joe Biden in the White House. Days before her death, she dictated in no uncertain terms she did not want her position to be replaced until after the election. Disregarding this, and their prior justification for blocking Garland now that the shoe was on the other foot, Barrett was successfully nominated in October by President Trump as one of his last major acts whilst in office.
Though these individuals are considered outstanding legal scholars, capable jurists, and experienced professionals in their field, their nominations were forced through despite credible objections by the smallest margins. Effectively, this places a near-unlimited veto in the hands of a body whose members do not have seemed to entered office with a broad consensus in favour of their appointment, and whose opinions are not reflected by the majority of the American public. The decision to overturn Roe seems to thus owe more to several reactionary conservatives, appointed through dubious means, stacking the deck in their favour rather than based on tangible legal principles or anything resembling popular support.
What does this mean for the future of the US and the rest of the world?
Overturning Roe vs. Wade not only affects what may be your traditional idea of an abortion, but also other vital healthcare services such as miscarriage care- which are needed even in some full-term pregnancies.
Dr. Stephanie Mischell explains that “medically, miscarriage and abortions are treated in very similar ways”. One such example of this is the dilation and curettage procedure, which is used to remove tissue from the uterus in cases of miscarriage. If this is not carried out, the mother could have serious complications, including sepsis and in its worse cases, end in fatality. An estimated 1 in 5 pregnancies end in miscarriage, whilst up to half of women have had a chemical pregnancy (miscarriage before five weeks). These are not only physically draining experiences, but also often result in mental health issues and grief. The overturning of Roe vs. Wade makes an already devastating experience much more dangerous of women in the US, a danger which extends to all pregnant people in states with restricted abortion services- miscarriages can happen to anyone, anywhere and do not discriminate against political or religious points of view.
It is not only the wider parameters of women’s healthcare that is endangered by this SCOTUS precedent, but also other rights currently considered constitutional- including gay marriage. When asked about his reasoning for overturning Roe, Clarence Thomas indicated that access to contraceptives, same-sex marriage, and even queer sex itself, could all be up for review. The particulars of these rulings are hidden in several legal cases: Griswold vs Connecticut, Lawrence vs Texas, and Obergefell vs Hodges.
Griswold vs Connecticut was a 1965 SCOTUS decision which ruled the US Constitution protects the freedom of married couples to buy and use contraceptives. It was stated that any state intervention would be “to deny disadvantaged citizens … access to medical assistance and up-to-date information in respect to proper methods of birth control.” In a 7-2 vote, the Court established it would be a violation of the “right to privacy” to restrict birth control.
Similarly, Lawrence vs Texas- a 2003 SCOTUS ruling- reaffirmed this “right to privacy”. It states that it is a personal right to define one’s relationships, and bars state interference of consensual private sexual encounters. In this case, it specifically addressed the right to same sex intercourse. Another ruling in danger of overruling is Obergefell vs Hodges- a 2015 SCOTUS case which ruled that the right to marry is extended to same-sex couples by the 14th Amendment.
What does the SCOTUS ruling mean for us, as UK students? We have already seen a rise in support for anti-choice groups in Northern Ireland, in addition to the lack of infrastructure for people seeking abortions there: they are still made to travel to England in order to terminate their pregnancy over 10 weeks, despite the decriminalisation of the service in 2019.
Here in England, the Gillick competency test has enabled young women to access sexual health, menstrual and pregnancy care- including contraceptives and abortions- without parental consent. However, since this was passed in the House of Lords in 1985, it has been contested. In 2021, Bell vs Tavistock argued that children under 16 cannot consent to taking hormones in order to transition their gender. Bell’s lawyer, Paul Conrathe, proposed the ruling demonstrated that “The Gillick competency test is no longer fit for purpose.”
The overruling of such UK legislation would systematically revoke access to these healthcare services. Precedents like those set by the SCOTUS provide a renewed motivation globally for those who seek to restrict this access, and we will likely begin seeing tangible effects around the world shortly.