Roe V Wade newspaper headline on the US Constitution with the United States Supreme Court in background

Let’s start with the better-known story-states seeking to ban abortions. Beginning with the Mississippi law that bans abortions after 15 weeks and continuing with the Texas law that bans abortions after 6 weeks, states have rushed to enact copycat laws that include either a 6 week ban or a 15 week ban along with penalties for abortion providers and for those who provide information on abortion. As of this writing, there are 13 states that have passed what is called a “trigger law.” These laws would ban abortion altogether if Roe is reversed. Finally, there are other states such as Michigan that have laws on the books banning abortion that pre-dated the Roe v Wade. These laws would, presumably, go into effect once Roe was overturned.

Often, on the surface, the issue seems to be a political one, a conflict between states’ rights and federal jurisdiction, between social groups or political parties, between North and South or capital and labor, liberal and conservative, Blacks and Whites. But at bottom, there are constitutional issues involved, a conflict over individual and personal rights, rights enshrined in and guaranteed by the Constitution of the United States, demanding a new hard look at that Constitution and its application to concrete historical circumstances.

The decision divided the United States and is still controversial. People became divided into pro-life and pro-choice groups. Pro-life supporters argue that the unborn baby has the same right to life as other people, and the government should intervene to protect it. Pro-choice supporters believe that the unborn baby is not the same as a person, that the woman has the right to choose what she wants to do with her body, and that the government should not intervene.

The right to an abortion in the United States appeared to be on shaky ground as a divided Supreme Court heard arguments Wednesday on the fate of Roe v. Wade, the court’s 1973 decision that legalized abortion in the United States.

Wade would fully return the abortion to the states where it belongs. The case should never have reached the Supreme Court to begin with. Conservatives who seek a constitutional amendment to prohibit abortion are absolutely clueless about the nature and structure of government in the United States. There should be no federal legislation to criminalise abortion any more than there should be federal legislation to criminalise murder, rape, assault, or armed robbery. These are all state matters.

While so many reproductive choices happen in private, we live in a democracy, so we have a voice in the types of laws we believe our country should have. Wade is a pivotal constitutional law case about abortion rights in America.

Also complicating the issue of abortion rights are rules requiring a woman to get “informed consent” or parental consent. Informed consent involves a requirement that before performing an abortion, an abortion provider must give the patient information about the risks of abortion, alternatives to abortion, the age of the fetus, and the availability of government assistance for carrying the pregnancy to term. Parental consent involves a requirement that a minor wishing to undergo an abortion first obtain consent from her parent or guardian.

Wade was heard in 1972, and on January 22, 1973, the Supreme Court ruled that the right to an abortion was legal under the due process clause of the Fourteenth Amendment, which guarantees privacy in personal decision-making. The Court did, however, rule that the state had the right to intervene if the abortion caused harm to the mother or if the child had passed a specific pregnancy trimester threshold. The timing of the abortion was later reversed and replaced with a clause which maintained that the mother could abort until the child reached ‘viability;’ that is, the ability to live on its own outside of the mother’s womb. Advocates for and against abortion have contested the issue for decades.

With all the protests both in the United States and in Australia over the change of the protection of abortion in the constitution do not understand that laws around health, murder, rape, assault and armed robbery are a state issue. We have all found out recently how ineffective that the Federal Government can be in dealing with State issues during the COVID-19 pandemic. So, it was disappointing to seeing Bridget Archer MP – Liberal Member for Bass accept an invitation to speak at protest over the Roe vs. Wade decision as both Bridget and the protest were conflating the issue of where the law over abortion should reside and the need to protect women’s health.

By Editor