The debate around abortion and the future of reproductive rights is necessarily nuanced because the issue itself is complicated and intensely personal.
owever, the news that Roe v Wade, the landmark 1973 decision that protects the right to abortion until viability, could be overturned by the US Supreme Court is a lesson for us all that women’s struggles will never be over.
There will always be laws that need to be updated and, when appropriate, protected.
The overturning of Roe v Wade is scary enough in being such a backward step, but the way in which it was leaked is also unnerving. But could it be enough to undermine, or even destroy, major socio-political progress, with far-reaching repercussions for women around the world?
Abortion access has been a controversial topic in the US for a long time, but its fate now is to be determined by a Supreme Court with a conservative super-majority itching to overturn a 49-year-old precedent. This is despite public opinion polls consistently showing most Americans support abortion being legal, even if many might like to see more limits on when it can be performed.
The leaked document – labelled “1st Draft” – appears to reflect the majority opinion of the Supreme Court, and Politico reported it was written by Justice Samuel Alito and circulated in February.
Associate Justice Samuel Alito wrote: “Roe was egregiously wrong from the start.” The case is Dobbs v Jackson Women’s Health Organisation, which asks whether abortions before the foetus would be viable outside the womb are constitutionally protected.
What is clear is the conservative arm of the Supreme Court wants to end legal abortion in America – to end the recognition of a woman’s constitutional right to make her own medical decisions, including having an abortion without state interference. If this draft goes into effect as is – which is expected – it would mean abortion access would become nearly impossible in many states.
What might this assault on reproductive rights mean for Ireland? Until 2018, we still had a constitutional ban on abortion.
In 1983, the Eighth Amendment was written into the Constitution, giving the unborn the same rights as mothers.
It meant that when a woman became pregnant, she was stripped of her human rights, denied an abortion even if she was pregnant and still a child herself, or even if the baby she was carrying was so sick it would die shortly after birth.
It often felt like we were living inside The Handmaid’s Tale, but women campaigned for more than three decades to have it removed.
The Yes landslide, which was confirmed at a relieved and exuberant gathering in Dublin Castle, meant Ireland finally gave its girls and women the right to choose to be pregnant or not.
Women could finally have support and healthcare in their own country – we had been handed back control of our bodily autonomy.
“The draft judgment puts the US distinctly out of line with most of the rest of the world, with international human rights law and with clinical and public health best practice,” said Fiona de Londras, professor of Global Legal Studies at Birmingham University in England.
“It is very much a product of the idiosyncratic political and legal battle over abortion that has been ongoing for 50 years in the USA. While the judgment will no doubt give anti-abortion activists great hope, inspiration and energy, its concrete impact internationally is likely to be extremely limited.”
Máiréad Enright, reader in feminist legal studies at Birmingham Law School, said the decision does not have any necessary legal effects for Ireland.
“The US Supreme Court draft is framed very clearly as a judicial response to what Justice Samuel Alito calls a previous exercise of ‘raw judicial power’ in Roe v Wade,” she said.
“Irish abortion law does not depend on any judicial decision. Instead, we have clear national abortion legislation, grounded in a very recent majority decision to amend the Constitution to facilitate liberalisation of the abortion law.
“There really is no comparison between the two jurisdictions. Dobbs v Jackson is also highly unusual in global terms – the international trend is towards recognition of women’s reproductive rights, as evidenced by recent developments in Argentina, Colombia and Mexico as well as in Ireland.”
Ms Enright added: “The draft decision in Dobbs v Jackson has already been widely condemned for ignoring women’s lived experiences of restrictive abortion laws. With the upcoming Repeal Review, Irish legislators have an opportunity to focus on those experiences, just as the Oireachtas, the Citizens’ Assembly and Irish voters did in 2018.”
An ongoing review of Ireland’s abortion laws, chaired by barrister Marie O’Shea, is due to deliver its report to the Government later this year.
Whether or not Roe v Wade is overturned, as now seems increasingly likely, this appears to be a time when there is a real need for women to stay alert – when hard-fought gains can be so comprehensively eroded in an instant.