Explained: The Roe versus Wade case that legalised abortion in the US

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Anti-abortion activists outside the US Supreme Court in Washington in 2019's March for Life.(AP)

In a landmark judgment delivered on January 22, 1973, the US Supreme Court ruled that undue state restrictions on abortion were unconstitutional. Essentially, this ruling decriminalised abortion nationwide.

Roe versus Wade

The federal action against the District Attorney of Texas’ Dallas County was brought forward in 1970 by Jane Roe, a pregnant single woman from Texas. Roe challenged the constitutionality of the Texas criminal abortion laws, which prohibited termination of pregnancy unless necessary to save the mother’s life. Henry Wade was District Attorney of Dallas County.

In the class-action suit, Roe claimed she wanted an abortion which should be "performed by a competent, licensed physician, under safe, clinical conditions”. She added that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened if her pregnancy was continued, and that she could not afford to travel to another jurisdiction for a “legal” abortion. She therefore claimed that the Texas laws were “unconstitutionally vague” and abridged her right to privacy.

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At the time, a separate but similar action was filed by a childless married couple, who wanted that if the wife becomes pregnant, she should be allowed to abort. A three-judge District Court heard the matter together and held that the right to choose whether or not to have children was protected by the Ninth-Fourteenth Amendments of the US and that the Texas criminal abortion statutes were “unconstitutionally vague and overbroad”.

On January 22, 1973, in a 7-2 decision, the US Supreme Court legalised abortions in all 50 states. In his delivery of the opinion of the Court, Justice Blackman said, “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion…”.

The abortion debate in the US

There are two sides of the abortion debate — those pro-choice stand with women’s right to choose if they want a child or not and hence support abortions.

The other side is of those who are 'pro-life', who argue that life begins at conception and an unborn child also has a right to life. The anti-abortion strand is supported by organisations such as Feminists for Life, which represents “pro-life feminists” and maintains that abortion is a reflection that society has failed to meet the needs of women.

In the US, abortion was legal and widespread until the 1840s, when the “quickening” doctrine was used. This meant that abortions were allowed until women could feel the foetus move.

According to an article published by the Organisation of American Historians, the “right-to-life” movement was not started by activists, but by physicians in the mid-nineteenth century who were competing with a “variety of other healers” who could also perform abortions, since it was not regulated at the time.

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Once states started criminalising abortions, licenced physicians were the only ones who could perform abortions under exceptional circumstances. As per the article, Americans started demanding a change in abortion laws in the 1960s in the backdrop of the nascent feminist movement. But with the emergence of the pro-choice movement, the anti-abortion movement was also born and mostly comprised Catholic doctors, nurses, lawyers and housewives.

“Before Roe, the anti-abortion movement was very small, geographically disperse, and focused on individual state legislatures. After 1973, activists and state legislators alike worried that Roe prescribed a one-size-fits-all abortion law that could only be addressed at the national level. Thus, in the 1970s, activists promoted the Hyde Amendment (which successfully prohibited federal funding of abortions through Medicaid) and pushed, unsuccessfully, a constitutional amendment banning abortion. After 1973 the direction of pro-life activism changed, even as its demographics and core political arguments remained the same,” it says.

Recently, a slew of states in the US have legalised anti-abortion measures that ban abortive procedures as soon as six weeks into the pregnancy. According to the BBC, in the first few months of 2019, nearly 30 states introduced some form of an abortion ban in their legislature.

Significantly, US President Donald Trump’s Republican Party advocates an anti-abortion position. In fact, for the first time, a sitting President is set to attend Friday’s (January 24) March for Life, an annual anti-abortion event. "See you on Friday...Big Crowd!" Trump tweeted on Wednesday.

Abortion laws around the world

In 2012, an Indian woman living in Ireland, Savita Halappanavar, died in the hospital after she couldn't get an abortion. Halappanavar was 31 and died from septicemia, an infection that developed because she was denied an abortion after suffering a miscarriage.

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Ireland’s Eighth Amendment, which was brought forward in 1983, banned abortion in the Republic of Ireland. The amendment acknowledged, “the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”.

After Halappanavar’s death, the call to repeal the amendment gained momentum and in May 2018, voters went to the polls in a historic abortion referendum, in which roughly 66 per cent voted in favour of abortion.

According to the Centre for Reproductive Rights, abortion is prohibited altogether in the Philippines, Egypt, Iraq and Senegal, among a few other countries