The Supreme Court Decision on Roe versus Wade: A Discussion

 Emma Kirby and Tom Fairman discuss the US Supreme Court's recent ruling on Roe versus Wade.

Emma Kirby:

The Roe v Wade ruling of 1973 effectively legalised abortion in the US. Earlier this year, a leaked document indicated that the supreme court may overturn this. The text obtained detailed that the ruling was ‘egregiously wrong from the start’ and that very soon, individual states will have control over women’s rights to abortion: almost half of these states either have, or will soon have, laws banning abortion. And so it proved to be: on the 24th June, Roe v Wade was overturned in an unprecedented reversal of rights, allowing more than half of states to ban abortion.  

So, five decades after women’s rights over their own bodies was enshrined in US law, these rights have been crushed. What will the consequences for women now that the ruling has been overturned? They will be forced to seek out illegal abortions, putting their lives at risk in a return to punitive, archaic practices. They will be forced to travel to other states where abortions may still be possible to attain, or even other countries. However, many experts warn that is it likely that more restrictions will be implemented to prevent those planning on travelling to do so and penalise those that do. In short, an abortion is now, in many states, a criminal act thereby criminalising women who have them, many of them vulnerable and at risk. So too, travelling is not an option for everyone. We need to remember the bigger picture that this is a country with no national paid maternity leave and (perhaps surprisingly) high maternal mortality rates. This will inevitably widen the socio-economic divide between those whose circumstances may still allow them to access abortion and those who have no such option.   

President Biden has characterised the move as ‘radical and called it ‘a fundamental shift in American jurisprudence.’ Indeed, can America still be considered a ‘free’ country now this legislation has been overturned? Arguably, bodily autonomy is a fundamental precondition of democratic citizenship. If the right to freedom over one’s body can be so easily overturned, logically other human rights are equally dispensable, such as the right to gay marriage and the right to contraception. The slippery, undemocratic slope of American politics is dangerous and steep. There was a small glimmer hope that the country would pull itself off the precipice and back on firm, democratic ground – consider how abortion laws have changed recently in Ireland, Mexico and Argentina – but this has been snuffed out.

Just weeks before the overturning of Roe v Wade, a vote to codify Roe v Wade and protect abortion rights across the county was blocked when 50 Republican senators were joined by Democrat Joe Manchin. The opposition voice may have been audible (just), but at a federal level, the Democrats have failed to have any impact. Instead, rights so tirelessly fought for are being unpicked at the seams: for those who fought this battle decades ago, to find themselves confronted with these same threats to their human rights so many years later, hope has given way to weariness and resignation. Abortion clinics are closing across the US and now other countries where abortion has proved a controversial and divisive issue are taking note: for Italy, a new hard-right conservative politics (closely aligned with the Catholic church) means that that the overturning of Roe v Wade has brought the issue back into focus. So too in Ireland, those factions that dispute women’s constitutional right to abortion have been emboldened: as Bernie Smith put it, a high-profile pro-life campaigner, ‘There's a lot to be learnt from what is happening in the US.’

How this plays out in the US over the next few years is yet to be seen. Democrats would need to win landslide victories in the upcoming midterm elections to have any impact on federal law that could challenge the legislation. Regardless of the future, what is certain is that the lives of American women, right now, will be irrevocably altered as they are denied the reproductive health care which should, by rights, be theirs.

 Tom Fairman:

Whose right?

The recent ruling in the US to overturn Roe vs Wade has caused a massive outpouring of emotion. There has been much fear, criticism and blame alongside a lot of condemnation and in the polarised world we live in, people have once again taken sides, dug trenches and taken the moral high ground.

Whether you are in the pro-life or pro-choice camp, the need to listen when these seismic moments happen is never greater and only when this happens can we begin to look for a way forward that does not result in vilification or self righteous preaching. Therefore in this spirit I want to offer an alternative view that seems to be running against the main stream reaction and hopefully provide some understanding.

One of my favourite examples from university that I remember when studying mathematical logic was in regard to temperature (a strange place to start on this journey, I know). We generally prefer a nice 25° day to a 5° one. However if the temperature was 24° we would not be able to tell the difference and so have no preference between them. Then let us compare a 23° day to a 24° one. Again the difference is unrecognisable and so our preference would not exist. Therefore we extend this chain of logic until we get to 5° with there being no preference between each change, however we have now reached a point from our starting place where we do have a preference.

The rational, logical approach is to conclude that we should not have a preference between 25° and 5° because each incremental change does not affect our preferences. Therefore aside from proving we are inherently irrational beings, it also demonstrates we place arbitrary barriers somewhere upon our line of preferences to hide this obvious irrationality to make us look rational.

Applying this logic, we would all agree that killing a child is wrong. The anger that blazes when we hear of these stories in the news demonstrates this. Therefore if we take the baby back to the day before they were born, the difference that exists between the child inside the womb and the one outside the womb is so small that we would feel the same indignation and anger. I think I would be right in saying abortion at this late stage is universally condemened.

Thus if we look at the day before that, we would see almost imperceptible differences and so our preference would again be indifference. Applying the same comparison to one day before, we would eventually find ourselves at the point of conception and so being unable to go back a day further, we look back to the birth and see how far we have come and so feel there must be a cut off point. How many weeks do we assign as the point in which the child who is born is not recognisable to the child in the womb? Essentially at what point do we say this is a person and the day before it is not?

Any cut off point has this question and thus associated irrationality within it when considered on its own. The logic seems to dictate that the only true cut off point would have been from the moment of conception itself from when on, this life if left to its own devices would turn into a person eventually, whether it is perceivable at that stage or not. The question of when life truly starts after conception then would appear to be an arbitrary one.

If we accept this logic, then abortion at any stage from the perspective of the vulnerable child would be considered to be wrong and without a voice, there appears to be a need to uphold the sanctity of the unborn child and to protect it. It is not from an oppressive point of view that this argument is made but from a child's point of view.

This message of protecting the innocent does not always come across positively as it seems to ignore the beautiful role a mother plays. A child cannot survive without the love of its mother who in turn needs to be supported and loved. The creation and upbringing of a child is supposed to be within the context of a loving relationship hence the Trinity's example of what love and creation looks like. The choice both parents have to make is whether to enter into this trinitarian dance.

This choice occurs long before the question of unwanted pregnancy is every asked. To become pregnant, there should be a conseual act between two people in the knowledge that it could result in the creation of a new life. This act of love was created to be enjoyable and desirable through evolutionary purposes to ensure gene pools continued but theologically I would argue because we are made to be creative beings who mirror our God that created life itself.

Whether we rely on contraception or not, this choice we make has the potential to make new life and thus the choice we make in this moment is the one that has potential consequences that we need to be ready for. Real consequences and which is why the Church argues for this act to be within the context of marriage, a place that should be perfect for a child to be born into where mutual love and respect flourish in a true commitment to one another

This argument then becomes not just about one decision but about a way of life and how we treat ourselves and each other. The argument would stretch to say that being pro choice is not having the choice over what goes on inside the womb but over what you do with your whole body and how we, both men and women, treat and view each other. Do we treat each other with the respect and dignity that comes from being made in the image of God? Do we choose to not act on every desire we have but be in control and make decisions based out of love?

This message is not one of condemnation but of trying to understand why people are arguing on the other side. It is always not a message aimed at women only, but at men. No one should ever be on their own when pregnant and it is to the detriment of society as a whole that men walk out on pregnant partners and take no responsibility when unwanted pregnancies occur.

If this logic is sound, what can society do to support both the unborn child and the scared mother? This is truly where the debate lies. As much hurt as is caused by unwanted pregnancies, there is a whole lot of hurt that exists through miscarriages and couples being unable to conceive. Could more be done to heal both pains?

And then we come to the grey areas, the outskirts of the issues where Jesus would have walked. The statistics from the US would suggest that at most 10% of abortions are due to incest, rape or physical harm to the mother. I cannot begin to imagine the horror that must be felt when someone finds they are pregnant after such an act nor the turmoil that occurs when the choice is between your baby or yourself. I do know that in those moments Jesus would have walked and His suffering on the cross was for times like these. There is no judgment there, just understanding and solidarity from a merciful, tender, sacred heart.

However in the other 90% of times, a different choice is made and there is a danger of how we come to define unwanted pregnancies; down syndrome testing and gender testing to name but two that present people with a choice. Everyone is free to make their own choices and no-one on earth is here to condemn or judge another for their actions. The log in their own eye prevents them for being able to do this. Yet the vulnerable do need to be protected and we need to appreciate that all our choices have consequences, some foreseen and others not, and how we deal with those consequences matters.

Therefore before we throw stones and demonise each other, let us listen to each other and understand why we make the choices we do and why we pick these battles to fight. Only then will we find a way to live in relationship with each other, protecting the vulnerable inside the womb and the vulnerable whose wombs they are.