Photo by Nathaniel St. Clair
The recent overturn by the U. S. Supreme Court of Roe v. Wade, beyond the will of Congress and of the American people, has called into question the role of the so-called third branch of government. In this instance, it has also unleashed widespread division and anger across the country, together with predictable harms to the health and well-being of girls and women comprising 51 percent of our population.
This article has five goals: (1) to bring some historical perspective to this controversy; (2) to summarize the action of the Supreme Court in this case; (3) to describe the subsequent legislation passed by conservative state legislatures; (4) to consider the adverse impacts on women’s health; and (5) to show how this kind of action of the Supreme Court, uninformed by medical science, intrudes upon the role of the medical profession as caregivers as they try to act in the best interests of their patients.
Brief Historical Perspective
Historical context is useful since the overthrow of Roe v. Wade by the Supreme Court on June 24, 2022 has put a spotlight on its role of judicial review. The extent of its power through judicial review has seen some controversy since the founding of this country. Although many might believe that it has the power to interpret the Constitution and to strike down any law that it chooses, judicial review does not appear in the Constitution and is not firmly rooted in the American tradition. In fact, Abraham Lincoln directly attacked its role in his inaugural address:
[The] candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.1
Thomas Jefferson argued that judicial review of this kind makes the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.2
The 1973 Roe v. Wade Supreme Court decision recognized by a 7-2 vote the right of women to terminate any unwanted pregnancy at any point up to “viability”, about 24 weeks. Conservatives have waged war against this right for many years, succeeding in 1977 with the passage of the Hyde amendment, which banned federal funding from covering abortion services. Since then, it has often been a budget rider on federal spending bills.
In 1992, in its ruling Casey v. Planned Parenthood, the Supreme Court affirmed the Roe v. Wade decision that the state is prohibited from banning most abortions except in instances to protect the health of the mother and the life of the fetus. A Partial Birth Abortion Ban was enacted in 2003 permitting abortion only as a last resort to save the mother’s life, or if the fetus was already dead.3
Ryan Cooper, journalist and managing Editor of The American Prospect, describes how politicized the Supreme Court has become in his seminal paper against judicial review by that body. Five of the six right-wing justices were appointed by presidents who took office after losing the popular vote. The sixth, Clarence Thomas, is married to an avowed conservative activist who agitated to overturn the result of the 2020 presidential election. Republicans have maintained a Court majority since the Nixon administration despite winning the presidential popular vote only once since 1989. Other wealthy democratic nations do not have anything close to America’s hyper-powerful Supreme Court. 4
In its emphasis on so-called pro-life, the GOP has been pushing for years the concept that abortion kills a person, no matter how far along in pregnancy, even to the point that a fertilized egg is a person.
The Overturn of Roe v. Wade by the Supreme Court
It immediately became front-page news across the country igniting widespread anger and protests. A draft opinion of the Supreme Court, authored by Justice Alito and passed by a 6-3 vote, was leaked to the public that the 1973 Roe v. Wade ruling would soon be overturned. Its ruling on June 24, 2022 did just that in the case of Dobbs v. Jackson Women’s Health Organization. Further decisions about access to reproductive health and abortion were returned to the states, half of which were poised to ban many or most abortions.5 Of further concern is the opinion of Justice Thomas that the rationale to overturn Roe should also be applied to overrule cases that have established rights to contraception and same-sex marriage.6 The three dissenting Justices released this scathing rebuttal:
The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.7
Amidst the controversies in the aftermath of this year’s ruling overturning Roe v. Wade, the question of settled law and precedent has come to the fore. Three of the conservative Justices agreed on earlier occasions that the 1973 ruling was settled precedent, reaffirmed it on several occasions during their confirmation hearings, although they acted differently this year in denying that precedent.8
Recent events are raising questions whether Supreme Court Justices are above the law. As one example, Clarence Thomas refused to recuse himself from a case regarding former President Trump’s records on January 6, and in an 8-1 ruling was the only dissenting vote who wanted to keep the White House records hidden. His conflict of interest was obvious—his wife, Ginni Thomas, has been shown to have been directly involved with efforts to overturn the results of the 2020 presidential election and aware of planning the January 6 insurrection.9 Although a petition calling for his removal from the Supreme Court received more than 1 million signatures,10 he remains there, unelected, for life.
What State Legislatures Have Done
Many states passed anti-abortion laws before the overturn of Roe v. Wade in June 2022.
More than 100 antiabortion laws were passed at the state level in 2021. Perhaps the most extreme was S.B. 8 in Texas, the so-called “heartbeat bill”, which banned abortion after just 6 weeks’ gestation, before many women know that they are pregnant. It even deputizes private citizens to bring civil lawsuits against anyone they suspect or know to have broken the law, with a reward of $10,000 for such reports. In response, some employers have been offering help with travel for women forced to leave their home state to gain access to abortion care.11
Access to abortion in about one-half of the country changed quickly after the overturn of Roe v. Wade, leaving patients, providers, lawyers and state officials scrambling to interpret confusing and often conflicting anti-abortion legislation. “Trigger bans” were ready for 13 states to ban abortion, mostly without exceptions for rape or incest. Indiana became the first post-Roe state to pass a near-total abortion ban, with the exceptions being rape, incest, lethal fetal abnormality, or when it is necessary to prevent serious health risks or death to the mother.12
Abortion remained legal in 20 states and the District of Columbia.13
Adverse Impacts on Women’s Health
It was hard to believe for many Americans to see how extreme the GOP’s “right to life” had become until the case of a 10-year-old rape victim being denied abortion in her home state of Ohio and having to travel to Indianapolis, Indiana for termination of her pregnancy. Outrage followed quickly among abortion right activists, was criticized by President Biden, and became international news. Her physician was the target of threats and harassment, considered filing a defamation suit, and the state’s Attorney General began investigating how the case was being handled.
David Blumenthal and Laurie Zephryrin, President and Vice President of The Commonwealth Fund, which has done so much to advance health equity in the U. S., said this immediately after Roe was overturned:
The loss of abortion rights will further erode and fragment our health care system, which is already failing women—the U. S. is the high-income country where women are most likely to die of preventable causes, including complications from pregnancy.
They had these further concerns about the loss of Roe:
+ Fewer options for providers and for women suffering from ectopic pregnancy, pregnancy loss, or other complications.
+ Creating anxiety, fear, and hesitancy to seek or provide care in states where abortion is criminalized.
+ Resulting in thousands of unplanned births and thus the increased likelihood of maternal morbidity and mortality.
+ Increasing the long-term risks to life and health of children, since evidence shows that children of unintended pregnancies are more likely to suffer preterm birth, low birthweight, impaired child development, and adverse childhood experiences.14
There are many complications of pregnancy that are hazardous for women, some life threatening, that require early medical evaluation and consideration of termination of pregnancy. Miscarriages occur in 15 % of all pregnancies, pre-eclampsia (pregnancy-induced high blood pressure) in 5-8 %, and ectopic pregnancy (outside the uterus, usually in the fallopian tube) in 2 %. Delay in termination of pregnancy with these conditions often puts the mother’s health and even life at risk. A recent study in Dallas County, Texas, in the face of state-mandated limits on treatment, makes these risks real. The complication rates for mothers were doubled, especially for infections and hemmorhaging.15
In the aftermath of abortion bans by state legislatures, hospitals have often been forced to bring together panels of physicians and attorneys to decide when a pregnancy can be prematurely ended. In other cases, two or more physicians may be required to sign off on such a decision. As a result, this process delays treatment and increases the risk to the mother.16
Beyond medical complications of state-mandated abortion bans, the overturn of Roe removes a fundamental right of women to make their own decisions about reproduction, and to control their own bodies and future lives. It is unconscionable that a state law can require a woman to give birth to an unwanted child and support that child until age 18, especially under circumstances that are often unfavorable for both. The hypocrisy of the “pro-life” movement is made clear by Sister Joan Chittister, O. S. B.., author of The Breath of the Soul, this way:
I do not believe that just because you’re opposed to abortion, that makes you pro-life. In fact, I think in many cases, your morality is deeply lacking if all you want is a child born but not a child fed, not a child educated, not a child housed.17
Medical Science and Professionalism vs. Uninformed Political Action
The U. S. Supreme Court, without medical knowledge of the impacts of their rulings (or if so, uncaring), has far exceeded what should be expected in a democracy. It has tried to substitute its judicial review for medical science and the everyday roles of physicians trying to serve patients with their personal choices and reproductive health care.
In recent months, more than one-half of abortions are being carried out by medication—mifepristone—effective up to 10 weeks of pregnancy. It could not be obtained, however, through telemedicine because of restrictions during the Trump administration. The American College of Obstetricians and Gynecologists and other groups sued the FDA over that exclusion, which since has allowed women to get the medication by mail.18 Under the Biden administration, the FDA has permanently lifted the in-person requirement to receive medication abortion, allowing patients availability of treatment if unable to travel to a provider. 19 The FDA is also considering whether medication abortion products may be made available over the counter.20
Conclusion
The Supreme Court is out of touch with American values, and has acted beyond the will of the electorate and the federal government. Six in ten respondents to national polls by ABC News and the Washington Post from 1995 to the present have consistently affirmed that personal reproductive decisions should belong to women themselves. In addition, the ripple effect of the 2022 Roe v. Wade overturn may have more impact on the economy than expected. As one example, Eli Lilli, the largest employer in Indiana with more than10,000 employees there, has recently stated that “we will be forced to plan for more employment growth outside our home state.”21
The Roe overturn is also likely to have a major impact on the outcome of the 2022 midterms, most likely to the benefit of Democrats. It remains to be seen, however, how all this will turn out beyond the midterms, but it is already clear that the so-called third branch of government has exceeded its role as visualized by the Founders of our country.
References
1. Cooper, R. The case against judicial review. Prospects 2032. The American Prospect, August 2022, p. 6.
2. Ibid # 1, p. 7.
3. Geyman, JP. Roe v. Wade at a crossroads: Can it prevail for the common good? CounterPunch, October 8, 2021.
4. Ibid # 1.
5. Dapena, K, Calfas, J. Where abortion is legal and where it loses protections without Roe v. Wade. Wall Street Journal, June 28, 2022.
6. Kendall, B, Bravin, J. Supreme Court ends constitutional right to abortion after nearly 50 years and allows states to ban the procedure. Wall Street Journal, June 25-26, 2022: A:1.
7. Kusisto, L, Lucey, C, Calfas, J. Roe v. Wade overturned. Wall Street Journal, June 25-26, 2022: A:1.
8. Jayapal, P. Who’s to say they won’t come after other fundamental rights? Pramila for Congress, May 6, 2022.
9. Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show. The Washington Post, March 24, 2022.
10. Oshin, O. Petition calling for Clarence Thomas removal from Supreme Court gets more than 1 million signatures. The Hill, July 6, 2022.
11. Butler, K. U. S. firms are creating abortion benefits. Los Angeles Times, March 25, 2022.
12. Cheng, A. Indiana passes a near-total abortion ban, the first state to do so post-Roe. The Washington Post, August 6, 2022.
13. Kitchener, C, Schaul, K, Kirkpatrick, N et al. Abortion is now banned in these states. See where laws have changed. The Washington Post, August 6., 2022.
14. Zephyrin, L, Blumenthal, D. The loss of abortion rights will send shockwaves through the U. S. health care system. New York. The Commonwealth Fund, June 24, 2022.
15. Goodman, D, Gorayshi, A. Women face risks as doctors struggle with medical exceptions on abortion. New York Times, July 20, 2022.
16. Ibid # 15.
17. Salzillo, L. Catholic nun explains pro-life in a way that will stun many (especially Republican lawmakers). Daily Kos, July 30, 2015.
18. Armour, S. FDA allows women to get abortion pill by mail. Wall Street Journal, December 15, 2021.
19. Belluck, P. Abortion pills now account for more than one-half of abortions. New York Times, February 24, 2022.
20. Walker, C. FDA is considering making birth control pills over the counter. Truthout, July 11, 2022.
21. Smyth, J. Eli Lilly says Indiana abortion ban will shift jobs out of its home state. Financial Times, August
