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Abortion: No Longer a Constitutional Right in the USA

-Report by Rhea Mistry

In a landmark case in the USA, Roe v. Wade, in 1969 Roe was an unmarried pregnant woman who wished to have an abortion that would be performed by a licensed physician with due diligence in Texas. But, as per the Texas statutes, it was not permitted for a woman to perform an abortion legally unless and until it was necessary for their health and approved by a competent physician. As the physician had said that there was no harm to her life with her pregnancy, so Roe could not legally abort her pregnancy. She couldn’t afford to go to another jurisdiction for a legal abortion. Roe argued that this statute of Texas infringed her Right to Privacy, which is protected by the 1st, 4th, 5th, 9th, and 14th amendments.

A competent physician, James Hubert Hallford, put forward that there are two cases where they were not able to recognize whether the pregnancy came under Article 1196 of its constitution that stated the exceptions to which a woman is allowed to legal abortion. The doctor was arrested for violating the Texas abortion law. He asked for injunctive and declaratory relief. He said that the statutes of Texas law were vague and uncertain which violated his rights as a medical practitioner and even his patient’s right to privacy in the 14th amendment.

At the same time, John and Marry Doe filed a complaint relying on Roe in the case Doe v. Bolton and stated that due to her medical condition, she was told to avoid pregnancy for some period, but if she does get pregnant then she will have to have to do an abortion even though the pregnancy was not life-threatening.

The court held the arguments made by Doe did not hold any merit and lacked jurisdiction. As for Jane Roe and Dr. Hallford, the court held that the statutes of Texas for criminal abortion laws were vague. The fundamental right of women, to decide whether to have children or not is the right that is protected by the 9th and 14th Amendments. The court stated that the Texas Law was infringing the rights of the 9th amendment.

The judges ruled that it is a constitutional right of the woman to opt for abortion and choose whether to proceed with the pregnancy even when the mother’s life is not threatened. The court had allowed abortion, however, imposed certain conditions.

Gestational Age Act

In the year 2018, Gestational Age Act was passed by Mississippi Legislature. The Gestational Age Act banned abortion after 15 weeks of pregnancy making a few exceptions for example where it is threatening to the life of the mother or any severe fetal abnormality, or in the cases of rape or incest.

Just a day after this act was passed, Jackson Woman’s Health Organization – an only abortion clinic, sued the state healthcare officer, Thomas E Dobbs with a few other healthcare officials of the state challenging this act. The abortion clinic performed abortions up to 16 weeks of pregnancy and claimed that the viability of the fetus begins between 23-24 weeks of the pregnancy. So, the state has no legitimate interest before the viability of the fetus and argued against outlawing abortion. Dobbs argued to check if fetal pain would be possible after the first 15 weeks of pregnancy. The District Court determined that the evidence submitted by Dobbs was inadmissible and irrelevant.

The state appealed to the Fifth Circuit which confirmed the judgment of Jackson Woman’s Health Organization v. Dobbs, stating that if the abortion is before the fetus’s viability, there is no undue burden on a pregnant woman’s rights. The Fifth Circuit by per curiam in February 2020 sustained that there is a lack of fetus viability in the early stages and stuck to their judicial precedent in the case of Dobbs.

The Mississippi State filed an appeal petition to the Supreme Court in June 2020, stating that the fetus can detect pain from 10-12 weeks of pregnancy and requested the court to encore the viability of the fetus. The respondents asserted that the Mississippi Law was unconstitutional. The court stated that there is no concern raised allowing them to intervene in this case.

On December 1st, 2021, it was argued that the constitution does not guarantee any protection for the right to abortion. The petitioner asked to overturn the decision of Roe and Casey considering that the techniques have changed. They claimed that the viability of the fetus was not standard. The respondents argued against overruling the decision of Roe and Casey.

A US general solicitor stated that the court has never revoked a right that is so basic to so many Americans. Six consecutive members appeared to continue with the old Law of Roe and Casey while the other justices were ready to overturn Roe and Casey.


After this, a draft of the majority opinion was leaked on 2nd May 2022. The draft showed the majority opinion considered that the rules of Roe and Casey were not correct from the beginning and the constitution does not guarantee any protection for abortion rights. It allowed the states to frame their own rules regarding abortion laws.

The court on 24th June 2022, reversed the decision of the Fifth Circuit. Both Roe and Casey were overturned by the majority opinion.

The states independently decided on the law of abortion at that point, and some states are still doing so. A few states outlawed abortion through trigger laws, while a few others outlawed it outright. They assert that abortion is no longer a constitutional right and that the constitution makes no provision for the protection of the right to an abortion.

Dobbs v. JWHO is the new landmark case in the USA for banning abortion.

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