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The TLDR: A shocking Supreme Court decision has allowed a Texas law that virtually bans all abortions to take effect. This may be just the first step toward overturning a woman’s right to terminate a pregnancy in the United States—which is one of the wealthiest and ‘advanced’ nations in the world. WTF is happening here?
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 20 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 fetus 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 fetus 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
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