What would the end of Roe c. Wading for abortion rights in the United States?

In a sweeping attack on the 1973 decision, published by the Politico news agency, Conservative Justice Samuel Alito writes that Roe v. Wade should never have seen the light of day. His assumption, he continues, did not certainly not successful to calm the abortion debate that is dividing Americans.

The Supreme Court upheld the authenticity of the leaked document, but was quick to clarify that it was not no decision of the court or a final opinion of any of its members.

What would happen if the Court reversed this historic judgment? Daphne Gilbert, a professor at the University of Ottawa Law School and a specialist in American constitutional law and access to abortion, answered our questions.


What will no longer be protected if this resolution is ratified?

The deer v. Wade recognizes a constitutional right to abortion. And it’s explicit.

By virtue of that judgment, the Court had introduced a trimester system that made it possible to determine when abortions could be performed. Therefore, states could not prohibit abortion before embryo viability, which was determined at approximately 24 weeks.

In 1992 there was another case, Planned Parenthood v. Casey, who effectively abolished this system of trimesters and ruled that states could introduce certain restrictions even before the fetus was viable, including limiting the professionals who can perform abortions and the number of facilities where the procedure can be performed .

This decision therefore meant greater policing of access to abortion, but the rationale of Roe v. Wade believed that a woman could not be barred from having an abortion until the fetus was deemed viable. And that’s what this upcoming US Supreme Court decision is all about.

Would abortion become illegal anywhere in the United States?

no But when the US Supreme Court Roe v. Wade, states will then be free to pass legislation aimed at making abortion illegal.

How did the Supreme Court come to reconsider this abortion right?

In 2018, Mississippi passed a law banning abortions after 15 weeks of pregnancy, in direct violation of Roe v. Wade. For this reason, the case was brought before the Supreme Court, known as Dobbs v. Jackson Women’s Health Organization.

Before the text, written by Judge Alito, was published, three scenarios were considered. The first: that the court ruled out the validity of Roe v. Wade and affirms abortion rights is the best-case scenario. But no one really believed this could happen as the Supreme Court is overwhelmingly conservative.

The second option was for the court to recognize the legitimacy of the law passed by Mississippi and yet specify that abortion cannot be prohibited. The state would then have been authorized to set a pregnancy limit above which a woman can no longer have an abortion.

And the final scenario — the worst — is on the horizon, according to the leaked text. Namely that Roe v. Wade had no place to be and that abortion rights must therefore be rescinded.

How many states plan to ban abortion once Roe v. Wade cancelled?

More than twenty states are ready to ban abortion on their territory. Thirteen of them have already enacted legislation such that the process can no longer be practiced once the Supreme Court has rendered its decision, such as Alabama, Mississippi and Tennessee.

A dozen others have already indicated that they would ban or impose restrictions on all voluntary terminations of pregnancy (abortion) if the country’s highest court were to overturn Roe c. Wade.

Could a woman be taken to court for trying to have an abortion in another state?

Some legislation that has already been passed contains provisions prohibiting travel from one state to another for the purpose of abortion. So it’s a real possibility.

It should be noted, however, that in the United States nearly half of abortions are medical rather than surgical. And it keeps growing. I believe it will be difficult to regulate the distribution of these drugs and to stop a woman trying to have an abortion in this way, as it is a process very similar to miscarriage. So it might be less easy to prove, but it’s not impossible either.

We’ve been saying it for over 50 years, but women will continue to have abortions one way or another. The question is how safe will they be. »

A quote from Daphne Gilbert, Professor at the University of Ottawa School of Law

And those who try to help these women in their efforts, such as members of the medical staff, could they be punished too?

Yes. I think the laws will be draconian. Not only will we see states ban abortion, but also prevent anyone from assisting or facilitating travel to obtain an abortion. We are talking here about the ban on driving a woman from one state to another or paying for her transportation.

Texas has passed a law that would allow Uber and Lyft drivers to be fined up to $10,000 for helping someone get an abortion. These are civil charges, but I am satisfied that once Roe v. Wade canceled, people could be criminalized for assisting a woman in her endeavors.

Is it rare for the US Supreme Court to overturn a past decision?

Yes, that almost never happens! The best-known case of this type is Brown v. Board of Education dating back to 1954-1955. The Supreme Court then ruled that racial segregation in public schools was unconstitutional.

According to former United States Supreme Court Justice Sandra Day O’Connor, there are two cases that stand out in the nation’s history, two landmark moments in which the highest court attempted to resolve a contentious issue. School board and Roe v. Wade.

She said a decision as important as Roe v. Wade, because the court had turned to the nation and couldn’t be wrong. But it seems the justices currently sitting on the Supreme Court disagree.

When can we expect an official decision?

The Supreme Court has two months to make its decision, which will come into effect when it is announced. The five judges who signed the leaked document by a simple majority will find it difficult to change their minds.

If they change their minds, they will appear to have bowed to public pressure instead of making a decision based on the highest standards of justice. »

A quote from Daphne Gilbert, Professor at the University of Ottawa School of Law

As far as we know, at least three members of the court will vote in favor of Roe v. Wade. And Chief Justice John Roberts must decide which side he is on. But even if he chose not to vote to overturn the verdict, it wouldn’t be enough to tip the scales the other way. The scenario remained the same, the end of Roe c. Wade.

deer v. wade

deer v. Wade hails from a challenge created by Norma McCorvey in 1970 – renamed Jane Roe in the lawsuit to preserve her anonymity. Pregnant and single, she wanted an abortion in Texas. However, since her pregnancy did not threaten her life, McCorvey was unable to request an abortion, a procedure prohibited by law.

Attorney Henry Wade, representing the state of Texas in the case, initially won his case in district court, but Ms McCorvey’s attorneys appealed. On January 22, 1973, the Supreme Court ruled the matter seven to two, repealing Texas’ abortion laws.

* The content of the interview has been edited for brevity and clarity.

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