Researched by: Sara Varghese and Surabhi Shukla 

A brief introduction to Roe v. Wade

In 1973, Roe v. Wade became the landmark Supreme Court judgement that established a woman’s right to have a safe abortion—which was illegal in the United States until that time. It did not establish any right to have an abortion—but rather recognized that such a right falls under every citizen’s right to privacy. Even the right to privacy is not spelled out in the US Constitution, but has been interpreted as being an integral part of the broader fundamental right to liberty.

Terms and conditions: The ruling established clear rules and limitations on abortion rights—based on the “viability line,” i.e. when a foetus becomes viable outside a woman’s body. 

• During the first trimester, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
• The state can regulate abortion in the second trimester if it impacts the woman’s health.
• The state can ban all abortions in the third trimester unless the pregnancy endangers the woman’s health. At this point, the state’s right to protect potential life outweighs the woman’s right to privacy.

Interesting side note: Jane Roe aka Norma McCorvey—who filed the original suit—came out as a fierce anti-abortion activist after the ruling. But in 2017—in what she called a “deathbed confession”—she admitted that she was paid by evangelical groups:

“I think it was a mutual thing. I took their money and they’d put me out in front of the cameras and tell me what to say. That's what I’d say. It was all an act… If a young woman wants to have an abortion, that’s no skin off my ass. That’s why they call it ‘choice’.”

If you’re curious about India: The Medical Termination of Pregnancy Act legalised abortion in 1971—two years before Roe. Until then, abortion under any circumstances—except if the pregnancy posed a danger to a woman’s life—was illegal in India. The MTP Act, however, did not establish any right to abortion—and made it conditional on a doctor’s approval. It allows a woman to get an abortion within the first 12 weeks if a medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. The conditions imposed by MTP were liberalised this year, extending that window to 24 weeks. But in sum, Indian women still don’t have the right to an abortion on demand. The power is still vested in the doctor who has to sign off on the procedure.

The culture war over Roe

Almost from the very outset, the Supreme Court ruling became a lightning rod for a fierce and often ugly battle over societal values. It was initially opposed by Catholic groups—who were joined by far more powerful white evangelical Protestants to form what they called a “moral majority.” And over the decades, there has been relentless political and legal pressure to undo the precedent set by Roe. How big is the cultural divide? In 2020, only 13% of Republicans said abortion should be legal in all circumstances—compared to 49% of Democrats.

The ‘heartbeat’ laws: The crux of the Roe ruling relied on determining the viability of the foetus outside a woman’s uterus—and made that the criteria to determine whether a woman’s right to privacy trumps the foetus’ right to life. The anti-abortion groups have tried therefore to redefine ‘viability’ in their model legislation—which has inspired actual laws passed in various states. The core assertion: “While not the beginning of life, the heartbeat is the universally recognized indicator of life”—which in turn leads to this conclusion:

“The model legislation says that if a patient is seeking an abortion, the doctor must use ‘standard medical practice’ to determine whether the foetus has a heartbeat. If a heartbeat is present, the doctor is prohibited from performing an abortion, unless it is necessary to save the mother’s life or ‘to prevent a serious risk of the substantial and irreversible impairment of a major bodily function.’”

Point to note: A doctor can typically determine “a flicker of cardiac motion” around six weeks—which brings us to the now infamous Texas law, and the legal threat these ‘heartbeat’ laws pose to Roe. 

The Texas ban on abortions

Until now, all the ‘heartbeat’ laws have been blocked by legal challenges. The Texas law is the first one to actually go into effect. The Senate Bill 8 was passed by a Republican-dominated legislature—and signed into law by Republican governor Greg Abbott. Here’s what it says:

One: The law bars abortions once cardiac activity can be detected in the embryo—which is around six weeks. Most women don’t even know they are pregnant at this point. And more importantly, this is not an actual heartbeat since foetuses do not have a heart at six weeks—and that ‘activity’ comes from tissue called the foetal pole.

Two: There are almost no exceptions to the six-week rule:

“The law does not make exceptions for rape or incest. It does permit abortions for health reasons, but the exceptions are narrowly drawn, allowing a termination only if the pregnancy could endanger the mother’s life or lead to ‘substantial and irreversible impairment of a major bodily function.’”

Three: It is carefully written to prevent the courts from blocking its implementation. It specifically states that no government official is allowed to enforce this law. Rather, it will be enforced by civil lawsuits brought by private individuals. As per this law, any person can sue anyone who performs an abortion after the sixth week of pregnancy, or anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Yes, this means some Tom, Dick or Harry can sue your doctor or even your relative who gave you a ride to the abortion clinic for $10,000 in damages. The big but: They can’t sue you.

Big point to note: The legal logic for crafting weird law is simple: to prevent abortion rights activists from suing to block the law before it takes effect:

“So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.”

Until the first lawsuit is filed under this new law, there is no target to sue. 

The overall aim: is to flood abortion clinics and groups that offer abortion assistance with lawsuits. The fear of expensive litigation will ensure everyone falls in line. In Texas, abortion providers have already said they will comply with the six-week rule.

Point to note: This doesn’t mean that the Texas law cannot be challenged. Once someone files a lawsuit, it can be disputed in court as unconstitutional. What is shocking is that the Supreme Court refused to stay the law—even though it overturns established legal precedent. As Vox notes:

“[T]he justices effectively rewrote the nation’s abortion jurisprudence without receiving full briefing, hearing oral argument, or taking more than a couple of days to even consider the case. Just as significantly, blessed a tactic that could be used to undermine virtually any constitutional right. Imagine, for example, that New York passed an SB 8-style law allowing private individuals to bring lawsuits seeking a $10,000 bounty against anyone who owns a gun. Or, for that matter, imagine if Texas passed a law permitting similar suits against anyone who criticizes the governor of Texas.”

Coming up: Overturning Roe

Most of the state laws—including the one in Texas—try and do an end run around Roe—and another landmark ruling called Planned Parenthood v. Casey which affirmed its judgement. But the state of Mississippi has filed a Supreme Court appeal that directly calls for the ruling to be entirely overturned. The brief says bluntly: 

“Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court. Nothing in constitutional text, structure, history, or tradition supports a right to abortion.”

Much to the horror of abortion rights activists, the Court has agreed to hear the case and decide “whether all pre-viability prohibitions on elective abortions are unconstitutional.” The hearings will start this October.

The big threat: The Mississippi appeal is timed to take advantage of a Supreme Court bench that is heavily conservative. The most recent Donald Trump appointee Amy Coney Barrett has made her personal opposition to abortion clear—and the criticized Roe judgement as a law professor. Four justices already voted to uphold a similar Louisiana law in 2020—but were outvoted in the nine-member bench. Now Barrett could give them the winning vote. 

The bottomline: This week, Texas passed a law that allows citizens to openly carry a gun—without a permit, background check or training. If Roe is overturned, it will be entirely legal to pose a lethal danger to actual human beings—while the ‘life’ of a six-week foetus is fully protected. Welcome to America!

Reading List

Vox has the best overviews on the Texas law and the Mississippi appeal to overturn Roe. BuzzFeed News explains the “bounty” system set up by the Texas law—and how it may work. CNN reports on the Biden administration’s efforts to preserve abortion rights. The Guardian reports on the reaction to the Texas law. NBC News looks at Democratic initiative to “pack” the court—essentially increasing the size of the Supreme Court bench to ensure the conservatives will be outvoted. The Atlantic interviews the man behind the Texas law who explains the end game for abortion foes. CNN offers good background on the culture wars over abortion in America.