Dr. Linda Roland Danil, Department of Surgery, Fitzwilliam College, University of Cambridge
On June 24, 2022, the United States Supreme Court ended the Constitutional right to abortion in the case of Dobbs v Jackson Women’s Health Organization. The Court’s majority decision, authored by Justice Samuel Alito, was largely the same as the draft opinion that had been leaked shortly prior. The Supreme Court majority opinion upheld Mississippi’s ban on abortion at 15 weeks’ gestational age, except for cases of medical emergency or severe foetal anomaly, but not for cases of rape or incest, and went even further by explicitly overruling Roe v Wade and Planned Parenthood v Casey, which affirmed Roe’s core holding (Cohen et al., 2022). The authority to regulate abortion was therefore returned to individual states.
The UK-based charity Privacy International pinpoints a contradiction in the majority decision in Dobbs. In the decision, the majority argues that the aim of overturning Roe is to ‘return to the people’ the ‘right’, or ‘liberty’ to decide whether or not access to abortion care should be legal. ‘The irony’, Privacy International writes, ‘is that in appealing to the “people’s liberty” to choose whether access to abortion care should be legal, the majority in Dobbs erases an individual freedom which would logically precede collective decision-making on contentious moral issues: this is the individual’s right to protect their private sphere of bodily autonomy, personhood, and their most intimate choices.’ (Privacy International, 2022) That is to say, the government cannot grant the right to liberty and bodily autonomy retrospectively through legislation – they are a priori condition of being a democratic political subject in the first place.
Roe v Wade was very significant in that it recognized that, in the first stages of pregnancy, the decision of whether or not to bear a child or bear children– a decision that affects not just a person’s body, but also their health, interpersonal relationships, and future, and their ability to participate equally in social and economic life – belongs to the individual, and not the government. Moreover, pregnancy is nearly always more dangerous to the pregnant person’s health than abortion, regardless of the gestational age at which the abortion takes place (Paltrow et al. 2022).
The judgment in Dobbs has also been argued to potentially place at risk other rights, such as the right to contraception, the right to engage in same-sex intimacy, and the right to same-sex marriage. Moreover, overturning Roe means that when a person is pregnant, their Constitutional rights to liberty and bodily autonomy may be denied– this would in effect establish them as second-class citizens, removing them from the category and community of full ‘Constitutional persons’ (Paltrow et al. 2022: 5).
Abortion is also a socio-economic, racialized, and largely gendered issue, since most, but by no means exclusively, of the people who become pregnant are women, and socio-economic and political realities are already skewed in a manner which disadvantages women, particularly women of colour. Abortion does not occur in a political, economic, or social vacuum, and abortion is a structural and systemic issue embedded in multiple forms of discrimination and disadvantage. As Michelle Oberman (2022) has recently written, one of the most common reasons for seeking an abortion is insufficient finances. As Oberman writes, half of all US abortions go to the 13% of Americans living below the poverty line, and those living in poverty or near poverty make up 76% of abortions every year.
I have never experienced pregnancy, but I can imagine that when it is desired, it can be a source of great joy. But what about when it is not planned for or wanted? As the three dissenting judges in the Dobbs case put it, this scenario can become a nightmare. In one of its most benign ways, when it is not life-threatening – because pregnancy can be life-threatening – pregnancy is not always pleasant, and a 2004 article by Samantha Warren and Joanna Brewis makes this clear. Data collected from interviews with mothers and one mother-to-be described pregnancy as a time during which a woman has little jurisdiction over her body. The respondents ‘[…] generally described pregnancy as a period during which they lost control of their body’s shape and its behaviour.’ (Warren and Brewis, 2004: 223). And what about when pregnancy and childbirth cause more serious issues, and are even perilous? Some medical problems during pregnancy or childbirth can include gestational diabetes, hyperemesis gravidarum (excessive nausea and vomiting that may require hospitalization), preeclampsia and eclampsia, and haemorrhage. Being pregnant, therefore, is not a risk-free or inconsequential undertaking. It comes with a price, mainly paid by the pregnant person, who may end up losing their life in the process.
Author: Dr. Linda Roland Danil, Department of Surgery, Fitzwilliam College, University of Cambridge, CB3 0DG
References
Cohen, I.G., Murray, M. and Gostin, L.O. (2022) The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion, Journal of the American Medical Association 328(4): 325 – 326.
Oberman, M. (2022) What will and won’t happen when abortion is banned. Journal of Law and the Biosciences, 9(1): 1 – 22.
Paltrow, L.M., Harris, L.H. and Marshall, M.F. (2022) Beyond Abortion: The Consequences of Overturning Roe, The American Journal of Bioethics, 22(8): 3 – 15.
Privacy International (2022) Privacy and the Body: Privacy International’s response to the U.S. Supreme Court’s attack on reproductive rights [Online] 22 July. Available at: https://privacyinternational.org/news-analysis/4938/privacy-and-body-privacy-internationals-response-us-supreme-courts-attack
Warren, S. and Brewis, J. (2004) Matter over Mind? Examining the Experience of Pregnancy. Sociology, 38(2): 219 – 236.
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