Roe V Wade Explained
An explanation of the legal systems in the US and Australia, a history of abortion in America and the consequences of the Roe V Wade case being overturned.
In May of this year, the Supreme Court of the United States made their decision pertaining to Dobbs v. Jackson Women’s Health Organization. This decision overturned the precedent set by the Roe v. Wade case in 1973 (and affirmed in the Planned Parenthood v. Casey 1992).
We are going to break down the legal and political history of abortions in America and in Australia and what this looks like for our lawmakers, judges, and young people across these continents.
The Supreme Court (in America)
First to touch on the structure of the Supreme Court in America. The Supreme Court is the highest court in America. It is named and established in the American Constitution (Article 3). There are 9 Supreme Court justices at any given time.
Below the Supreme Court, within the Federal system, sits the United States District Courts and the United States Court of Appeals. While state systems vary from State to State, most will have a trial court, appellate court (that hears appeals) and a state supreme court (not to
be confused with the Supreme Court).
The process for becoming a Supreme Court Justice is very public and politicised. Candidates are nominated by the Executive branch (the President) and confirmed by the legislative branch (the Senate). The confirmation process involves a publicised questioning.
It is most well-known for interpreting the Constitution, but its jurisdiction is broader
than that. Its original jurisdiction (instances where the Supreme Court hears it first) includes cases involving US ambassadors and representatives, or where the US or one of the states is a party. It has an appellate jurisdiction for all other cases. This means it can hear appeals regarding both Federal (National) and State laws and treaties.
The High Court (in Australia)
First things first, the highest court in Australia is called the High Court. Australia uses the term Supreme Court to refer exclusively to the highest courts in the state system (so we have the Supreme Court of South Australia, for example). There are 7 High Court Justices. Like America, each individual state tends to have a hierarchy of three courts, ranging from trial, appeal and, of course, the Supreme Court. The jurisdictions of these courts vary from state to state. Federally, Australia has the Federal Magistrate’s court, the Federal Court and the Family Court.
In name, High Court appointments are made by the Governor General (the Queen’s representative in Australia). In practice, the Executive Cabinet recommends that is usually followed by the Governor General. It is a relatively bureaucratic and secretive
process, in comparison to America’s public hearings.
The High Court of Australia’s original jurisdiction is very similar to the Supreme Court of Australia – cases pertaining to treaties, representatives of Australia and where ‘Australia’ or a state is a party.
Fun Fact: The Australian Constitution dictates that all Australian High Court Justices must be younger than 70. (This includes Federal Judges as well!) In comparison, 3 of the 9 US Supreme Court Justices are over the age of 70.
Landmark Case #1: Roe v. Wade 1973
Jane Roe, a pseudonym of the lead plaintiff in the Roe v. Wade case, was a young woman in her twenties based in Texas who was seeking an abortion but was unable to access one, given the legal restrictions.
Her case was picked up by two lawyers, Weddington and Coffee, who had been searching for a suitable candidate to challenge the Texas abortion restrictions. Its important to note that alongside the Texas restrictions, Roe (now known as Norma McCorvey), was unable to access an abortion interstate or an illegal abortion, because she did not have the funds.
The case was first bought to the District Court, where it failed, before being appealed to the Supreme Court in 1972. The Court ruled in favour of Roe with a limited bench 4-3 (two justices were sick), before reconvening in January 1973 with a full bench to decide in favour of Roe 7-2.
The Supreme Court were tasked with deciding whether the American Constitution protected the rights of Americans to access abortions. While abortions are not specifically mentioned
in the Constitution nor in the Bill of Rights, it is withing the Supreme Court’s jurisdiction to provide interpretations of the Constitution to modern day situations. It is not feasible for the writers of the American Constitution to have foreseen every outcome, hence the ability of the
court to read into the Constitution.
The arguments made by Weddington, Coffee and co largely centred on the Right to Privacy which had been interpreted in previous cases (:::123456789). The affirming Justices agreed and found that the Right to Privacy included the right to access abortions.
The Right to Privacy is another way of saying the right to be left alone by the government. It is largely drawn and interpreted from the 14th Amendment. The 14th Amendment states that neither the Federal nor state governments can ‘deprive any person of life, liberty, or property, without due process of law.’
The ruling of Roe v. Wade meant that the right to abortion access in the first trimester was protected by the Constitution and could not be restricted by state or federal laws.
Landmark Case #2: Dobbs v. Jackson Women’s Health Organization 2022
This ruling removes constitutional protection for first trimester abortions in the United States. Barring Federal legislative changes, this returns the right to decide abortion restrictions and
freedoms to the states. Specifically, the vote was 6-3 to uphold a law in Mississippi banning most abortions after 15 weeks.
This reverses the precedent set in Roe v. Wade and weakens the interpretation of the Right to Privacy found by the Supreme Court.
By overturning the right to abortions, the Supreme Court noted it was returning the decision of abortion legality back to the legislative arms of states and federal governments. Abortions are a highly divisive issue and in America, is a
key policy issue that tends to be split down Republican and Democrat lines (though not always).
Justices Roberts, Alito, Thomas, Gorsuch, Kavanaugh and Barrett made the majority in favour of Dobbs. Thomas, while agreeing with the majority, wrote his own decision, made a point to name several other previous Supreme Court cases that could now be challenged again, as the rulings were based on the Right to Privacy. This includes rights to marry a
same-sex partner, freedom to use of contraceptives, and the legalisation of homosexual intercourse.
Chief Justice John Roberts, a conservative Justice, did note his discomfort with overturning established Supreme Court precedents. The known liberal (lower case liberal) justices – Breyer, Sotomayer, Kagan – were dissenting (against the decision)
As of time of writing, it looks like first trimester restrictions will be introduced in at least 20 states. Biden, the US President, has indicated he will be attempting to bypass the filibuster to introduce Federal legislation, to enshrine first trimester abortion access in Federal law.
The complexity of the filibuster is a subject for another time, but in short, it is unclear whether this will be successful. Any Federal legislation would likely supersede state restrictions.
Despite the outrage regarding the removal of abortion protections in the US, the Dobbs ruling moves America closer to the Australian system. In Australia, the rights and access to abortions is entirely state jurisdiction (but more on that later).
A further intricacy of this ruling is that several American states – Alaska, Kansas, Michigan – have State Supreme Court rulings that find the right to abortion is protected by the state constitution. These rulings were largely based on the same right to privacy that the Federal Supreme Court found in 1973. While the state supreme courts are not bound by the
precedents and the overturning of precedents by the Federal courts, it is likely that these state constitutional protections will be challenged in the forthcoming months. It is unknown
whether the state courts will follow the new Federal Supreme Court precedent or not.
Again, try not to get confused by the double up in terminology between states and Federal justice systems.
California, Oregon, Connecticut, and Washington are among the states increasing commitments to abortion access, largely in the name of Safe Haven legislation. This legislation adds onto states’ current abortion protections, to protect women traveling from interstate to access an abortion. Largely, this involves changes to extradition laws and medical record confidentiality.
On the other side of the issue, many states with trigger laws have restricted access to
abortions already. Trigger laws are pre-emptive laws that are bought into implementation by changes in other jurisdictions, states, and countries. In this case, many of the trigger laws are initiated upon a change in Supreme Court ruling. States with trigger laws regarding abortions includes Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, and Utah.
While there is a lot of legal and legislative movement in this space, its important to
remember all of this is occurring within the function of the American federal system and separation of powers. States will be obligated to follow any Federal law, and in turn, all laws – safe haven, restrictions, protections, and Federal – are able to be challenged in the courts.
It is likely that over the next months that more changes are made in every state. Already, it is being signalled as a major issue for American voters in the upcoming November election.
The issue of access
With protests happening across Australia, the question of Australia’s rights and access to abortions has once again become very topical.
As of 2021, abortion has been decriminalised in every state in Australia. Thus, while America is returning to a similar structure as Australia, the consequences of access are very different
in the two countries.
However, the issue of access remains very similar. Beyond the legality of abortions, there remains difficulties for Australians and Americans to access abortions, due to geographical and financial constraints. Mississippi, the state in the Dobbs case, had one abortion clinic servicing the entire state prior to this. Every state in Australia has areas with no providers, most notably South Australia.
This is a good way to illustrate that rights enshrined in constitutions do not guarantee access to equitable protections, especially for regional, poor, and marginalised people. This ties in with larger questions of rights for disadvantaged Australians to access healthcare and services equitable with what is provided in Australian metropolitan cities.