Updated: Oct 1, 2022
Friday, June 24, 2022, the United States Supreme Court overturned a landmark decision commonly known as Roe vs Wade. The legal decisions around that case are widely credited with legalizing abortion in the United States.
For the last 49 years, the Roe v. Wade ruling has protected a pregnant woman's right to have an abortion.
Before Roe vs Wade, abortion law was determined mostly by individual states. Getting an abortion before Wade, for reasons other than medical was often impossible.
That all ended on January 22, 1973, when a 7-2 SCOTUS decision replaced the existing abortion law.
Abortion law, in every state of the union, was suddenly under federal jurisdiction and a constitutional right
At the time of Roe v. Wade, the Supreme court found the 5th and 14th Amendments to the US constitution prohibited governments' arbitrary deprivation of "life, liberty, or property".
That essentially legalized abortion nationwide.
But, the court also wrote the right to an abortion was "not absolute", creating a "trimester timetable".
The Original Roe v. Wade SCOTUS Trimester Timetable:
- For the first 3 months of pregnancy, no regulations preventing abortion.
- For the second 3 months, some regulations were in place to protect the mother's health but not that of the fetus.
- For the final 3 months, the SCOTUS ruled abortions could indeed be regulated, or even banned as long as provisions were in place to allow the procedure when the life or health of the woman was at risk.
In 1992 a second SCOTUS decision regarding abortion in the United States was reached. In the case, Planned Parenthood v. Casey, the trimester framework established by the court in their Roe v. Wade decision was overruled.
That allowed a woman to have unrestricted access to an abortion at any point in the pregnancy, right up to birth.
That was where abortion laws remained in the US until recently.
Then, Texas lawmakers found a workaround to Roe and Casey, essentially prohibiting abortions after 6 weeks of pregnancy.
In Dobbs v. Jackson Women's Health Organization the Texas "workaround", known as "Mississippi’s Gestational Age Act' was challenged.
The plaintiff argued the Texas "workaround" restricting abortions to less than 6 weeks gestation except for "medical emergencies" or a "severe fetal abnormality" violated a woman's constitutional right to an abortion based on the 1973 Roe vs Wade decision.
On June 24th a draft SCOTUS decision was leaked indicating that Roe vs Wade and Planned Parenthood v. Casey was about to be overturned as a result of Dobbs v. Jackson Women's Health Organization.
That would, for the most part, give abortion laws back to individual states.
Anticipating the U.S. Supreme Court decision, many states had prepared so-called "trigger laws" that would go into effect after the SCOTUS decision regarding abortion was made official.
Professor Greer Donley, an expert in reproductive health care law at the University of Pittsburgh is quoted in the publication Politico as saying it could take months for all the legal maneuvering to be completed and for the nation to have a more definitive picture of where "abortion is legal".
The professor fears “immediate total chaos” and "a real nightmare" for both abortion providers and patients.
Kentucky, South Dakota, and Louisiana are the only states that will immediately ban most abortions.
States' trigger laws generally need certification by lawmakers before they come into effect. That may take weeks.
Its also uncertain if the reversal on Roe and Casey will revert state law to a pre "Roe/Casey" era.
Until those details are ironed out it's generally believed current federal abortion laws will remain in effect. But that's not certain.
The Supreme Court of the United States will have no effect on Canadian abortion law.
Abortion in Canada is legal and is publicly funded. In Canada, a woman can choose to have an abortion at any time during pregnancy.
Despite Canada being the only nation with absolutely no criminal restrictions on abortion, few providers offer abortion care beyond 23 weeks and 6 days without a medical reason.