Staff Writer Grace Holloway reflects on the upcoming two year anniversary of Dobbs v. Jackson. She considers how the US Supreme Court case reshaped female reproductive rights on the domestic and international level.
The Aftermath of Dobbs v. Jackson
On June 24 2022, after months of intense speculation, the US Supreme Court reached a 6-3 verdict in the Dobbs v. Jackson case. This decision overturned the pivotal cases of Roe v. Wade and Planned Parenthood v. Casey. The repercussions for women’s reproductive rights were immediate and severe, with abortion no longer being protected at the federal level. Thus it allowed for state restrictions on abortion access to follow.
Despite POLITICO announcing the verdict a month before, the official announcement sent shockwaves across both the United States and the globe. As someone who was visiting Washington D.C. at the time, I felt compelled to witness the unfolding events first-hand. Standing amidst the protests outside the Supreme Court was a surreal experience. Having grown up in the UK, I was heartbroken to see a right fundamental to so many women being revoked. It was something I never thought could happen.
The protests drew a diverse crowd. Women, men, and people from all walks of life voiced their outrage at the court’s decision. However, there was a presence of pro-life protesters, who undoubtedly relished in their success, reflecting the deeply divided nature of American society.
Over the last two years, questions have been raised over the case’s impact on female reproductive rights and democracy. Not only in the American context, but abroad as well, including in the UK and across Europe. Are we moving backwards in terms of women’s rights in the west?
The history of US abortion law and the constitution
Roe v. Wade (1973) was a landmark case that ruled the U.S. Constitution protected the right to have an abortion. This was upheld in the Planned Parenthood v. Casey (1992), which prohibited states from restricting access to abortions. However, both protections were overturned by Dobbs v. Jackson which saw the states as having the right to determine abortion legislation.
Due to the historic nature of the American constitution, ratified in 1788, the Supreme Court (SCOTUS) has a crucial role to play in interpreting its meaning and allowing for the extension of rights. This gives SCOTUS enormous power to define what is constitutional, despite its very vague language. The Dobbs decision exemplifies how this vagueness can lead to significant changes and at times an erosion of rights.
The ruling has raised significant concerns about the power of the Supreme Court and the influence of ideology on constitutional rights. The 6-3 decision, reflecting the Court’s new conservative tilt, influenced by Trump’s appointments, signals a broader movement towards strong conservatism in the US. This conservative dominance has profound implications for American democracy, as it ensures a narrower approach to constitutional interpretations.
Despite ongoing debates, the conservative influence on SCOTUS has remained unaltered in the two years since the decision. The abortion debate epitomises the deep polarisation within American society, with pro-life and pro-choice groups representing starkly opposing views. This makes compromise nearly impossible.
What has this meant for the female reproductive rights in the US?
Following the ruling, many conservative leaning states have taken movements to completely ban or remove access to abortions. Twenty-one states have banned or restricted abortion access: fourteen states issuing a full ban and the rest restricting time limits. Complete bans involve states such as Alabama, Louisiana and Texas.
In contrast, many states have acted in opposition and have instead made abortion access legal and protected from future governments. States such as Ohio, California, Michigan and Vermont have enshrined abortion protections in their state constitutions. Additionally, many state governors have also issued executive orders to protect abortion providers.
These divergent state actions reflect deep societal divisions. Public opinion is also split, although a majority support abortion access. Recent surveys show 63% believe abortion should be legal in the large portion of cases, if not all of them, while 36% believe in the complete opposite. This divide correlates strongly with religious beliefs and party affiliation, as 85% of Democrat supporters back legalising abortion.
Overall, women’s reproductive rights have been significantly eroded in the past two years. Restrictions have forced women to travel long distances and to incur significant expenses to access abortion services. In the worst case scenario, women have faced the consequences of being unable to take any action at all.
Is American democracy suffering?
“Equal justice under law” is a statement inscribed on the front of the SCOTUS building. I personally find this ironic, especially in the picture depicted above with the gates blocking the building from protesters. In this case, are women really being treated as equal under the law? The 14th Amendment, also known as the equal protection clause, originally granted access to abortion. The equal protection clause sets out that all citizens of the US should not be deprived by states and are entitled to equal protection under the law. The Dobbs decision went against this clause, and favoured the rights of states over equality.
This situation has damaged the reputation of the US as a model of liberal democracy. The influence of Trump’s conservative appointments, combined with state actions and the polarising effect of SCOTUS decisions, indicates a troubling departure from past progress in the face of weakening rights protections.
The impact on the U.K. and Europe
The UK, while maintaining close democratic ties with the US, takes a more liberal stance on abortion. Abortion rights in the UK are protected by an uncodified, evolving constitution. The 1967 Abortion Act allows legal abortions up to 24 weeks, with restrictions beyond that timeframe.
Recently, the UK’s abortion laws have been under scrutiny. Campaigns to decriminalize abortion gained attention after Carla Foster was imprisoned in June 2023 for an illegal abortion. Many MPs and women’s rights groups have advocated for decriminalisation to prevent such imprisonments. However, amendments to the criminal justice bill supporting these changes have faced delays from the Conservative government.
Despite these challenges, the UK is unlikely to face major threats to abortion rights. Public opinion strongly favours legal abortion, with 87% of Brits supporting it. Even with the Conservative Party’s recent shift to the right, it’s unlikely they will campaign against abortion rights. Compared to other European countries, the UK’s 24-week limit is relatively lenient, influenced by the secular influence on government and reflecting a more robust liberal democracy.
While the UK still grapples with pressing women’s issues, such as the death of Sarah Everard and institutional sexism, there is no significant pro-life or patriarchal movement inspired by the Dobbs v. Jackson ruling. Instead, British government and society have largely condemned American actions, with Prime Minister Boris Johnson calling it a “step backwards” at the time. This signals continued support for women’s rights across the UK.
Responses across Europe has varied. Many have expressed concern with American actions and the need to further protect rights. The EU has advocated for abortion to be part of the Charter of Fundamental Rights of the European Union. Some European countries such as Malta and Poland, still have restricted access with near complete bans. Hungary, similarly going through a period of backsliding, issued new abortion restrictions in September 2022, which limit the time frame for abortion and issued heartbeat demands. However as a whole, the majority of European secular countries have embraced female reproductive rights protection, despite some failing to act strongly. France made history in March, by including the right to abortion in its constitution. This guarantees the freedom of abortion rights for women by protecting it from future changes.
Image by author of the protests in Washington D.C.
What’s next?
The UK and Europe are highly unlikely to follow in American footsteps. The delays to the UK criminal justice bill more reflect the uncertain priorities list of the Conservatives, rather than a movement in favour of pro-life. It is more likely under the possible next Labour government to see alterations to the existing law and better protection. Across Europe, while there is some divisions, as a whole female rights are less at risk.
For the US, the outlook is more bleak. The polarisation and gridlock within their government has made it impossible to establish federal abortion protection without SCOTUS. Congress and the President have failed to pass meaningful legislation, allowing for further conservative states to issue full bans. This is unlikely to change in the coming years.
Justice Clarence Thomas hinted that the Dobbs ruling was only the beginning for the conservative court to tackle vague rights extensions. He cited Obergefell v. Hodges, a case that legalised same-sex marriage, as something to be overturned on similar grounds as well as access to birth control Griswold v. Connecticut. However in the last two years no other major rights cases have been successfully challenged.
As long as SCOTUS maintains its 6-3 conservative majority, women’s rights, democracy, and freedom in the US will continue to suffer. ‘Equal Justice Under the Law’ is a concept SCOTUS no longer abides by. The upcoming November elections are crucial for determining whether the US will fully shift to the right or embrace Biden’s administration and possibly see further protections.
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