The future of abortion rights in the USA

In a landmark decision of the Supreme Court of the United States of America in 1973 established a constitutional right to abortion and barred states from banning the procedure before fetal viability.

This decision has, however, come under attack and the Supreme Court is being asked to reverse this decision so that abortions may be unlawful. The anti-abortion proponents hope to rely of the conservative composition of the Supreme Court judges to achieve this.

The State of Mississippi seeks to ban abortion after 15 weeks of gestation and has asked the Supreme Court to overturn its earlier ruling. The case is seen as potentially pivotal in establishing how aggressively the judges might move to place new constrains on abortion rights.

The Mississippi law that the Supreme Court is set to review makes abortions illegal after 15 weeks of pregnancy. The law was enacted in 2018 by the Republican-dominated Mississippi Legislature but the law never went into effect because of an immediate legal challenge that led to the blocking of its enforcement.

The law bans abortions, if the probable gestational age of the unborn human is determined to be more than 15 weeks, with narrow exceptions for medical emergencies or severe fetal abnormality. The state says that the fetus has made important physiological developments by 15 weeks, and abortions are riskier to the mother at this stage of pregnancy. Similar legislation have been passed in the recent years but these laws have been struck down in the appellate courts with the precedent created by the Supreme Court.

One of the conservative judges has signaled a readiness to back the State of Mississippi and seems ready to challenge the principle of precedent and has listed numerous cases where the court has overturned previous decisions.

Another judge has suggested that adoption services could nullify the need for abortion, by removing the burdens of forced parenting. Another judge has also challenged the notion that there is a constitutional right to abortion.

The fetal viability timeline is also being questioned, that is, if it is even an appropriate line for court to have drawn. To one judge “if a woman wants to be free of the burdens of pregnancy that interest does not disappear the moment the viability line is crossed.

The liberal judges appear to be prepared to let the status quo remain; one of the liberal judges has said that one of the major goals of precedent is to prevent people from thinking that the Supreme Court is a political institution that will go back and forth depending on what part of the public yells the loudest.

One liberal judge said, “The sponsors of this bill are saying that they are doing this because there are new justices on the Supreme Court.” The judge thinks that the Supreme Court will not survive the stench that restricting abortions will create in the public perception to the effect that the constitution and its reading are just political acts. If people believe it is all political, how will the court survive, the judge questioned.

To one of the liberal judges, there needs to be a strong justification in restricting abortions and this should be beyond the fact that an individual thinks an abortion is wrong. One judge put it this way: “to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”

Another liberal judge thinks Mississippi’s motive in restricting abortions is religious and fears that this may extend to the rights of birth control access and same-sex marriages. The liberal judges have asked what is novel about the Mississippi case when many others have not changed precedent. To them 15 justices of varying political background more than 30 years have reaffirmed the basic viability line…

To be continued.

By Dr Sylvester Onzivua