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Reproductive rights at risk
Sensemaker audio

Reproductive rights at risk

Reproductive rights at risk

For almost 50 years, women in the United States have had the right to have an abortion. But a Supreme Court case could put those rights in jeopardy.


Transcript
Nimo Omer, narrating:

Hi, I’m Nimo and this is the Sensemaker.

One story every day to make sense of the world. 

Today, the court case that could change the law on abortion in the US. 

***

For almost 50 years, women in the United States have had the right to have an abortion.  

Roe vs Wade was a landmark case in the Supreme Court. 

It ruled in 1973 that it was a woman’s right to decide whether to end her pregnancy up until the point at which the foetus becomes “viable” or able to survive outside the womb. 

Since then, other rulings have broadly upheld the law. 

But this week, another landmark case is being heard in the Supreme Court – a case that could undermine – and even overturn – the precedent set in 1973. 

It involves a law passed by the state of Mississippi in 2018. 

“The law bans abortion after 15 weeks of pregnancy, it makes no exception for cases of rape or incest. What makes this law particularly alarming is that since 1973, abortion has been legal and all US states. And the Supreme court struck down laws that made it illegal for a person to have an abortion.”

Professor Michele B. Goodwin, Tortoise

That’s Professor Michele Goodwin, she’s a law professor at the University of California and an expert on reproductive rights.

Having an abortion in Mississippi isn’t easy. 

What also makes this law quite alarming is that in Mississippi, there is only one abortion clinic that remains, and many of the people who are expected to be most harmed by this law will be the poorest women in the state of Mississippi and amongst them black women.”

Professor Michele B. Goodwin, Tortoise

The state has a single abortion clinic – the Jackson Women’s Health Organisation. 

But the clinic and its staff are staunch defenders of the right to choose. So they moved to challenge the new law immediately. 

Their lawyers argued that this kind of blanket “pre-viability”– ban was unconstitutional. 

A federal court agreed, so did the court of appeals. 

So the state of Mississippi asked the Supreme Court to adjudicate on this question:

Are state laws – laws that ban abortions before a feotus is viable – unconstitutional? 

You might think that the legal precedents set by Roe and following cases might provide an answer. 

But back in May, the Supreme Court made a decision to hear the case. 

So, how did we get to this point?

***

 “I am pro life and I will be appointing pro life judges. 

Donald Trump, CNBC

In 2016, Donald Trump vowed that if he became president, he’d move to overturn Roe v Wade. 

Key to meeting his pledge was knowing there were enough judges on the Supreme Court who were sympathetic to the arguments against abortion.

When he took office there weren’t – but by the time left, there were.  That’s because he used his Presidential prerogative to appoint three new judges – and they weren’t liberals.   

“Today I am keeping another promise to the American people by nominating Judge Neil Gorsuch.”

“Tonight, it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh.”

“Today, it is my honor to nominate one of our nation’s most brilliant and gifted legal minds to the Supreme court….Judge Amy Coney Barrett.” 

[Fade out applause]

Those appointments ensured there was a clear conservative majority: six to three. 

All the while, in conservative, Republican-led corners of America, states started to bring in laws that would put more and more restrictions on abortion – laws like so-called “heartbeat bills”.  

In Texas, for example, a law was passed that prohibited abortions as early as six weeks – before some women knew they were pregnant.   

A lot of these laws got struck down – but that may have suited the anti-abortion movement,  That’s because it wanted a ruling by the Supreme Court, especially as it was now dominated by conservatives.  This – at last – was the opportunity to overturn Roe v Wade….

***

So, what we’re seeing now is Donald Trump’s legacy.

Legal experts say the Supreme Court is hearing this case precisely because of his appointments: 

“We can infer from the court’s decision to take this case that there are at least four justices who think that the court will uphold this law and that, certainly, also, that there are four justices who think they have a fifth, right?

So there would be no reason for the court to agree to take this case unless the conservatives think they have a majority, at a minimum, to uphold this Mississippi law, and perhaps to go much further.”

Mary Ziegler, PBS NewsHour

The case is a watershed moment in the battle over reproductive rights. 

But how likely is it that the Supreme Court will overturn the ruling it made in 1973? 

***

Most of the judges  – even the most pro-life ones – are thought to favour incremental change. 

Their job is to focus on the law, not on politics – and most of them would probably be reluctant to overturn a ruling as significant as Roe. 

But that doesn’t mean they won’t shy away from important changes: 

“The court now has a composition where if cases such as the Dobbs case were to come before it, the Supreme Court can begin shaping an agenda about abortion that looks very different than Roe v Wade. And that ultimately leads to the undermining and gutting of reproductive health rights and justice.

So that it’s not necessarily just one big strike at Roe v Wade, but what one might describe as death by a thousand strikes. And the Mississippi case represents a broad strike, not just, one, in terms of the 15 week temporal policy, but also the lack of an exception for rape and incest.”

Professor Michele B. Goodwin, Tortoise

Today, we’ll hear from both sides of the argument. 

But it will be a few months until we know the outcome. 

Until then, reproductive rights hang in the balance. 

***