The United States of America is a politically divided society – one in which even the media is openly divided by partisan allegiance.This division can make it difficult to understand what pro-life developments are actually happening in the US. The purpose of this blog will be to explain the reasons behind the increased political and legal tensions surrounding the legality of abortion there.
Whilst we will be discussing the American pro-life landscape in this blog, it it worth remembering that although America is an influential country when it comes to abortion politics and activism, it is vital to know your own context. US approaches to pro-life issues need to be analysed and contextualised to whatever situation you find yourself in. Bearing that in mind, this blog will attempt to answer 3 central questions people may have about US at present, and offer some concluding thoughts on good ways to talk about the Dobbs case, as an Irish pro-lifer.
Why has there been an increase in US political activity relating to abortion recently?
The Guttmacher Institute (a pro-choice research think-tank) declared 2021 as “The Worst Year for Abortion Rights in Almost Half a Century”. In that year alone, 108 pro-life laws were passed at a state (as opposed to Federal) level. The reason for this flurry of legislative activity can be traced to pro-life excitement about a court case called Dobbs v Jackson. In September 2020, the US Supreme Court began considering whether to hear the case – and ever since then, pro-life legislators and lobby groups knew that if the court heard the case, and ruled in a certain way, abortion would no longer be a constitutionally protected right. Thus in order to prepare for this new legal landscape, pro-life law makers enacted a raft of restrictions on abortion. Many of these laws will only take effect should the Dobbs case be decided in a certain way, but all of these new laws are part of this effort to save pro-born lives.
What is the history of abortion in America?
When Ireland’s abortion history is compared with that of America’s, the crucial difference is that the American people have never been given the direct opportunity to decided their nation’s abortion policy, unlike their Irish counterparts.
The story of the the legality of abortion in America really began in earnest in 1973 – in a court case called Roe v Wade. In that case, the Supreme Court by majority held that the right to privacy essentially entailed a right to an abortion, though this right could be limited in the second and third trimesters of pregnancy.
The Supreme Court revisited the abortion question once more in 1992 in its Planned Parenthood v Casey decision. In the intervening years, abortion had become a political issue, so much so that there was immense pressure on President Ronald Reagan to appoint justices to the Supreme Court that were thought of as “pro-life”, but much to the disappointment of pro-life activists, the Court against upheld the right to an abortion as a constitution protected right. The Court replaced Roe’s trimester framework with a new one centred on viability.
This is why many of the pro-life laws passed by state legislatures cannot come into effect – they would be unconstitutional restrictions on access to abortion.
So what is the Dobbs v Jackson case all about?
In that case, the Court is addressing one questions alone: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
The factual dispute arose from HB 1510, a pro-life law which was passed and signed into law in Mississippi in 2018. It prohibits abortions after 15 weeks’ gestational age, except for medical emergencies and babies with life-limiting conditions. The day after the law took effect, an abortion clinic filed a legal challenge to the law, which also temporarily prevented the law from going into effect, and the awaited Supreme Court judgement will be the final step in this legal process.
The only way for the Mississippi law in question be permitted to have effect is for the the central holding in the Roe and Casey decisions – that abortion is a constitutionally protected right – to be altered, or overturned.
The Supreme Court is likely to give one of three possible rulings:
1) The Court fully overturns Roe and Casey, which means that the right to an abortion no longer exits at a Federal level, and each state is permitted to make their own abortion policy.
2) The Court modifies Roe and Casey to enable Mississippi’s law to come into effect, but maintains some kind of right to abortion access.
3) The Court doe not overturn Roe and Casey, and so abortion policy remains out of the hands of the American people to decide for themselves.
Perhaps the biggest takeaway from the Dobbs case for Irish pro-life advocates is that the law in question, HB 1510 is actually more permissive than our 2018 abortion legislation.
-it permits abortion on request up to 15 weeks’ gestation, compared to Ireland’s 12 weeks.
-it contains a wide-ranging exception for “severe fetal abnormality” which is defined as a physical condition “incompatible with life outside the womb”. Our section section 11 is more tightly defined.
So when you are speaking to a friend, colleague, or someone online about the Dobbs case, and they label the bill as an “extreme” restriction on abortion access – you can gently remind them that the the celebrated abortion legislation from 2018 is actually more restrictive that the Mississippi bill in question. You could also remind them of how Ireland’s abortion laws saved thousands of lives every year between 1983 and 2018.
But more fundamentally, you could ask them why in their opinion is legally permitted violence ever the answer to a difficult situation?