Written by Mansi Tiwary and Afreen Akbany (AMSA Sexual and Reproductive Health)

What was Roe v. Wade?

Roe v. Wade was a landmark decision passed by the Supreme Court of the United States (SCOTUS) regarding abortion laws in America on the 22nd of January, 1973. The SCOTUS ruled that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Roe v. Wade, 1973) (1,2). Prior to Roe v. Wade, abortion was illegal in most states, unless being performed in order to preserve the woman’s life or health, or in cases of incest, rape or fetal ill-health. (2)

The case was filed by Norma McCorvey under the legal pseudonym, Jane Roe. McCorvey was an unmarried woman who fell pregnant with her third child. She desired to terminate the pregnancy; however, she lived in Texas, where abortions were outlawed except in the aforementioned circumstances. (2) McCorvey’s lawyers, Linda Coffee and Sarah Weddington, filed a lawsuit on her behalf against her local district attorney, Henry Wade, in the US federal court. They argued that Texas’ abortion ban was unconstitutional, infringing women’s right to privacy. Eventually, the case was taken to the Supreme Court level, where 7 out of 9 judges ruled in favour of Roe, deeming that the Texan abortion ban was unconstitutional. The decision was a source of great contention, since 46 out of 50 states had to change their abortion laws as a consequence.(1) Hence, over the last five decades, this ruling protected the right to abortion at the federal level, and abortion services in America became safer and more accessible.

Notable subsequent judicial developments

Hyde Amendment:

The Hyde Amendment is a legislative provision which prohibits the use of federal funds to cover abortions, unless performed to save the mother’s life, or if the pregnancy is a result of rape or incestuous activity.(3) Before the amendment came into effect in 1980, approximately 300,000 abortions were being performed using federal funds every year.(4) The amendment was originally passed on the 30th of September, 1976 by the House of Representatives.(3) It has since been altered by Congress several times. The Hyde Amendment disproportionately disadvantages low-income women and women of colour. In his 2020 presidential campaign, US President Joe Biden pledged to overturn the Hyde Amendment if elected to parliament, after being pressured to do so by activists and fellow Democrats.(5) Biden’s 2022 budget, a non-binding document which was released in 2021, had omitted the Amendment.(6) However, this may not be feasible given the new pressures on  government funding with US pledging US$40 billion in aid to Ukraine.(6)

Planned Parenthood v. Casey:

Planned Parenthood v. Casey was a 1992 US Supreme Court case which challenged the right to abortion established in Roe v. Wade.(7) Although it affirmed the central holding of Roe, that “regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”, the decision was that the age of foetal viability was defined as 23-24 weeks rather than 28, as per Roe.(7) (States could not prohibit abortions while the foetus was viable.) Additionally, Roe had established a trimester framework regarding restrictions around abortion, whereby: 

• during the first trimester, the decision to terminate a pregnancy was the woman’s alone, 
• during the second trimester, the state could more tightly regulate abortions based on the mother’s health requirements, and 
• during the third trimester, individual states could outlaw or regulate abortions in the interest of viable life, with exceptions being made to preserve the mother’s life or health.(1)

This framework was abandoned during the Planned Parenthood v. Casey decision.(7)

Dobbs v. Jackson Women’s Health Organisation:

On the 24th of June, 2022, the SCOTUS passed the landmark decision, Dobbs v. Jackson Women's Health Organization, which overruled both Roe v. Wade and Planned Parenthood v. Casey (1992), maintaining that the American constitution does not grant citizens any right to abortion.(8) A draft of this majority opinion written by Justice Samuel Alito was leaked in May 2022. At that time, 13 states had trigger laws set to ban abortion as soon as Roe v. Wade was overturned.(9) The draft leak prompted more states to adopt similar trigger laws. At present, 12 states—Alabama, Arkansas, Georgia, Mississippi, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wisconsin—have banned abortion, and 4 states— Idaho, North Dakota,  West Virginia and Wyoming—are expected to ban abortion or place severe restrictions on abortion in the near future. So far, judges have temporarily blocked trigger laws banning abortion in Louisiana, Kentucky and Utah. Furthermore, abortion laws are thought to be threatened in 11 states — Arizona, Florida, Indiana, Iowa, Kansas, Michigan, Montana, Nebraska, North Carolina, Pennsylvania and Virginia. Collectively, these legislative changes are estimated to affect almost 40 million women of reproductive age within the US.(10)

Executive Order 14076: Protecting Access to Reproductive Healthcare Services

On the 8th of July, 2022, US President Joseph Biden signed an Executive Order to protect access to reproductive healthcare, directing the US Department of Health and Human Services (HHS) to ensure access to medication abortion and emergency contraception.(11) The Executive Order offers few specific guidelines on how to achieve its goals, and is expected to have limited impact in practice.

How did Roe influence abortion access abroad?

The Roe ruling precipitated movements to expand reproductive health and rights globally.(12) Notably, since the late 2010s, a sweeping grassroots movement—known as ‘Marea Verde’ or ‘the Green Wave’—has seen the most populous nations in Latin America pave the way for more widespread access to abortion, demonstrating that legal abortion acess can coexist with strong Catholic and Protestant traditions.(13) Roe has, as well, been influential in court decisions related to reproductive freedoms.(12) For instance, the High Court of Kenya in Malindi, in March 2022, specifically referenced and considered key points from Roe when affirming the right to abortion under the Constitution.(12,14)

It follows, then, that the Dobbs decision would have dire implications for global abortion rights. Human rights advocates fear that this ruling will strengthen worldwide efforts to restrict abortion access.(15) Countries such as China, El Savador, Indonesia, and Poland can point to the US to legitimise their own restrictive policies. In more permissive jurisdictions, anti-abortion activists may now feel emboldened to be more expressive of their views in public domains, exacerbating the stigma faced by people who seek abortion services, and by abortion providers.

What happens when women are denied abortions?

For about ten years from 2007, abortion advocacy group Advancing New Standards in Reproductive Health (ANSIRH) tracked the experiences of 1,132 women in the US who had received abortions or been denied them because of clinic policies on gestational age limits.16 Participants were recruited from 30 abortion facilities around America. This years-long project was led by demographer Dr. Diana Greene Foster, and came to be known as The Turnaway Study.(16)

Key findings from the Turnaway Study include the fact that women who are denied a wanted abortion and are forced to carry an unwanted pregnancy to term are:

• Four times as likely to live below the federal poverty line
• More likely to experience serious complications from the end of pregnancy including eclampsia and death
• More likely to suffer anxiety and loss of self-esteem in the short term after being denied abortion
• Less likely to have aspirational life plans for the coming year
• More likely to experience poor physical health for years after the pregnancy, including chronic pain and gestational hypertension (16)

Furthermore, being denied abortion has serious implications for the children born of unwanted pregnancy, as well as for the existing children in the family. (16)

However, it is worth noting that the Turnaway study did not include transgender or non-binary participants, and hence, its findings are not representative of these patient populations.(16)

Global evidence suggests that abortion bans do not make abortions much rarer.(17) They instead increase the number of unsafe abortions, as people turn to herbs such as rue and sage—and even attempts to inflict abdominal trauma—to self-manage abortions.(17) Thanks to medication abortion (a combination of mifepristone and misoprostol), abortion can be perfomed safely outside of formal healthcare settings.(18) However, the decision in Dobbs has created confusion about access to abortion pills. The US Food and Drug Administration allows these pills to be distributed by mail, but several states are seeking to ban them completely.(18)

In the US, childbirth is several times more dangerous than having an abortion.19 If patients have no other option than to carry pregnancies to term, they will have to shoulder the worse odds of death from pregnancy or childbirth.19 Global trends indicate that abortion bans increase maternal mortality.(19) In the US, restrictions are likely to disproportionately affect Black women, who are almost three times more likely to die of pregnancy- and childbirth-related complications than White women.(19)

What does abortion care look like in Australia?

In Australia, legislation around abortion varies by state. Each state’s regulations are tabulated below.

Table 1. Abortion legislation in Australia

Decision to terminate pregnancy at patient’s discretion up to 20 weeks of gestation. While legislation around abortion in Australia is much more progressive and permissive than that of the US, there remains significant room for progress. Barriers to abortion access include financial and geographic barriers, and deficiencies in practitioner attitudes, education and training.(21)

In Australia, federal funding is available for abortions provided within the private sector for those entitled to access Medicare, while States are responsible for the provision of abortion services in public hospitals.(21) Abortion services are unaffordable for many patients seeking them, owing to deficiencies in public provision and the subsidies for abortions performed in private hospitals.(21) For example, the cost of obtaining a medical abortion in the state of Victoria can range from as little as $6.10 to as much as $440, depending on the abortion provider.(21)

Geographic differences in abortion access across Australia have given rise to ‘reproductive tourism’, wherein people travel insterstate to more liberalised jurisdictions, or from rural and remote areas to cities with adequate healthcare infrastructure, to receive abortion care.(21)

Because of previous laws criminalising the procedure, abortion has been mostly absent from medical curricula and vocational training.(21) Additionally, doctor education and training has not readily adapted to the decriminalisation of abortion.(21) Abortion is included in the curriculum of only half of the medical schools in Australia, and there are no mandatory requirements for trainees of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) to have clinical experience providing abortion care.(21) The inadequacy of training has led to a significant nationwide shortage of surgeons who are able to provide abortions beyond 18 weeks’ gestation.(21)

Although decriminalisation has widened abortion access, further measures are required to help Australian people fully realise reproductive rights.21 These should include increased funding and public provision of abortion services in rural and urban areas, and appropriate vocational training to increase the number of practitioners able to provide the service.(21)

What can be done?

Reproductive healthcare is at risk in the new post-Roe reality. Here is what you can do to address barriers to abortion access, and join the fight for reproductive freedoms:

• Donate to community-based abortion funds, which provide financial assistance, travel, lodging and other types of support to people seeking abortions.
• Vote for legislators who support sexual and reproductive health and rights, such as access to abortion and contraception.
• Actively counter anti-abortion discourse by discussing the harms of forced pregnancy.
• Join pro-abortion rallies in your city or state to draw attention to the issue of restricted abortion access and rights.
• Advocate for the inclusion of abortion in your medical school curriculum.

References 

1. Legal Information Institute. Roe v. Wade (1973). Cornell Law School. Accessed July 23, 2022. https://www.law.cornell.edu/wex/roe_v_wade_(1973)  
2. Planned Parenthood. Roe v. Wade: Its History and Impact. Planned Parenthood Federation of America. Updated January, 2014. Accessed July 23, 2022. https://www.plannedparenthood.org/files/3013/9611/5870/Abortion_Roe_History.pdf 
3. Gerais R. The Hyde Amendment of 1976. The Embryo Project Encyclopedia. June 28, 2017. Accessed July 23, 2022. https://embryo.asu.edu/pages/hyde-amendment-1976 
4. Gold RB.  After the Hyde Amendment: public funding for abortion in FY 1978. Fam Plann Perspect. 1980;12(3):131-4. https://pubmed.ncbi.nlm.nih.gov/6995148/  
5. McCammon S. Biden's Budget Proposal Reverses A Decades-Long Ban On Abortion Funding. NPR. May 31, 2021. Accessed July 23, 2022. https://www.npr.org/2021/05/31/1001881788/bidens-budget-proposal-reverses-a-decades-long-ban-on-abortion-funding 
6. Griffiths BD. Biden will be forced to sign a restriction on abortion funding after Democrats caved to Republican demands. Business Insider. March 10, 2022. Accessed July 23, 2022. https://www.businessinsider.com/biden-hyde-amendment-repeal-house-spending-plan-ukraine-2022-3 
7. Legal Information Institute. Planned Parenthood of South-Eastern Pennsylvania, et al., Petitioners, v. Robert P. Casey, et al.. Cornell Law School. Accessed July 23, 2022. https://www.law.cornell.edu/supremecourt/text/505/833 
8. Center for Reproductive Rights. U.S. Supreme Court Takes Away the Constitutional Right to Abortion. Reproductive Rights. June 24, 2022. Accessed July 23, 2022. 
9. Al Jazeera Staff. What has happened in week since draft Roe v Wade opinion leaked? Al Jazeera. May 9, 2022. Accessed July 23, 2022. 
10. Witherspoon A, Glenza J, Chang A. Tracking where abortion laws stand in every state. Updated June, 2022. Accessed July 23, 2022. https://www.theguardian.com/us-news/ng-interactive/2022/jun/28/tracking-where-abortion-laws-stand-in-every-state 
11. Exec. Order No. 14076, 3 C. F. R. 42053-42055 (2022).
12. Sun N. Overturning Roe v Wade: reproducing injustice. British Medical Journal. 2022;377:o1588. Published 2022 Jun 27. doi:10.1136/bmj.o1588
13. Casas X. How the ‘Green Wave’ Movement Did the Unthinkable in Latin America. The New York Times. November 1, 2021. Accessed July 23, 2022. https://www.nytimes.com/2021/11/01/opinion/abortion-latin-america.html 
14. Center for Reproductive Rights. High Court of Kenya in Malindi Ruling in PAK and Salim Mohammed vs. the Attorney General and 3 others. March 25, 2022. Accessed July 23, 2022. https://reproductiverights.org/high-court-of-kenya-in-malindi-ruling-in-pak-and-salim-mohammed-vs-the-attorney-general-and-3-others/ 
15. Rai S. How the Fall of Roe v. Wade Could Impact Abortion Access Around the World. The Hill. April 7, 2022. Accessed July 23, 2022. https://thehill.com/policy/healthcare/3542593-how-the-fall-of-roe-v-wade-could-impact-abortion-access-around-the-world/ 
16. Foster DG. The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having–or Being Denied–an Abortion. New York: Scribner; 2020.
17. Singh S, Remez L, Sedgh G, Kwok L, Onda T. Abortion Worldwide: Uneven Progress and Unequal Access. Guttmacher Institute. Published 2017. Accessed July 23, 2022. https://www.guttmacher.org/sites/default/files/report_pdf/abortion-worldwide-2017.pdf 
18. McGovern T. Overturning Roe v Wade has had an immediate chilling effect on reproductive healthcare. British Medical Journal. 2022;377:o1622. Published June 30, 2022. doi:10.1136/bmj.o1622
19. Lau S. The United States needs people to stand up for abortion. British Medical Journal. 2022;377:o1493. Published June 22, 2022. doi:10.1136/bmj.o1493
20. Stirrat C. New abortion laws have come into effect in South Australia. What are they in other states? SBS News. July 7, 2022. Accessed July 23, 2022. https://www.sbs.com.au/news/article/new-abortion-laws-have-come-into-effect-in-south-australia-what-are-they-in-other-states/g5w55ghaj 
21. Sifris R, Penovic T. Barriers to abortion access in Australia before and during the COVID-19 pandemic. Women’s Studies International Forum. 2022;86. Published April 13, 2021. https://doi.org/10.1016/j.wsif.2021.102470