WOMEN often describe giving birth as “a scene from a horror movie.” Accounts of mistreatment during childbirth in the United States recall harrowing stories of doctors shoving their hands up the uterus of the mother, leaving her bruised, bloodied, and with severe post-traumatic stress disorder that follows her long after the birth. The choice to have a baby can often be a fatal one, always necessitating exposure to a certain amount of danger.
In the United States, a conservative movement to recognise the fundamental right to life of foetuses, and their corresponding right to not be aborted, has evolved over decades. Conservative proponents have put forth an assertive, moral view - the State cannot perpetuate the killing of babies. The Supreme Court of the United States, in Dobbs v. Jackson Women’s Health Org. (2022), has resonated with this view - allowing states to prohibit abortion in all circumstances if there is a “compelling interest” in the potentiality of the foetus’s life. In Dobb’s, the Court stated that a woman’s right to privacy to make medical decisions about her body did not always outweigh a foetus’s right to life, but failed to consider how a pregnancy also infringes on a woman’s right to life. There are no other laws in the United States, besides abortion bans, that require a person to risk their life or suffer bodily injury for another.
Pro-choice advocates have argued that prohibiting abortion before viability violates a woman’s liberty and decision-making power over her own body. Less explored in modern abortion arguments is the way Roe v. Wade laid the groundwork for eroding a woman’s right to life.
Bans on abortions at any point, including after viability, which were permissible under Roe, unduly elevate a foetus’s right to life above a woman’s right to life. Due to the impact of pregnancy and childbirth on a woman, I argue that there is no way for a state to claim a compelling interest in the life of a foetus without simultaneously extinguishing its interest in protecting a woman’s life. Any viability exception or abortion ban is impermissible if women’s right are to be fully considered.
Subsequently, I will compare abortion laws in Texas and Australia. While court abortion rulings allowed Texas to eviscerate women’s rights, other legal systems like Australia have found a way to regulate abortion while preserving those rights. I conclude by suggesting an equal protection strategy for securing abortion rights in the United States.
Roe and Dobbs
Roe was decided on two grounds. First, that a woman has a fundamental right of privacy to decide whether to have a child. And second, that the state does not have a legitimate interest in protecting the potentiality of human life before viability. Although hailed as revolutionary, the decision left a profound gap in the protection of a pregnant woman’s rights.
Roe explicitly stated that once the foetus can live a meaningful life outside the mother’s womb, the State may forbid abortion except when necessary to preserve the life or health of the mother. Although this necessity exception could be interpreted to mean an expansive definition of “life or health,” in practice it is only applied when a mother is on the verge of death or serious bodily injury. Thus, even in the Roe era, at some point in pregnancy, a mother’s right to decide what happened to her body was overpowered by the foetus’s right to life.
Since there is no agreed upon definition of “viability,” whoever makes the best argument about when life can be viable decides the moment in time when a woman loses her decision-making power. Roe permitted the foetus’s life to take precedence over a woman’s decision-making power in some circumstances. As academic Alec Walen argued, “Roe’s weakness derives from the fact that it provides no firm ground for saying that states are constitutionally prohibited from taking a compelling interest in the lives of unborn humans, even from conception.” The mechanism left behind by Roe to strike away at a woman’s right to life and health was exploited and expanded by Dobbs.
In June 2022, SCOTUS overruled Roe in Dobbs v. Jackson Women’s Health. The Court claimed that its decision was not based on any view about when a state should take a legitimate interest in protecting the potentiality of human life. However, the Court subsequently cited ten cases which stated that abortion kills a human being and recognized that states may claim a legitimate interest in foetuses.
The Dobbs Court unsurprisingly cited Roe many times for its words on viability and the State’s interest in protecting a foetus with the potentiality of life. It argued that the right to abortion is fundamentally different from rights related to contraception and same-sex marriage because it involves a “potential life.” However, diverging from Roe, the Court saw no reason to prohibit states from claiming this interest at any point in pregnancy. In doing so, the Court (more emphatically, but similarly to Roe) took a clear position that this is a legitimate interest for the state. It gave states the green light to prohibit all abortions.
Because Roe recognized that this interest existed at all and could outweigh a woman’s rights at a certain threshold in pregnancy, it left the door open for this right to outweigh a woman’s rights at any point in pregnancy. Through this opening, it was easy for the Dobbs Court to allow prohibitions on abortion when an “unborn life” is at stake.
How pregnancy can extinguish a woman’s life
Generally, we imagine that the right to life can and should outweigh the right to privacy. The Dobbs opinion reasoned that the state may have a legitimate interest in “respect for and preservation of prenatal life at all stages of development…the elimination of particularly gruesome or barbaric medical procedures, the preservation of the medical profession, [and] the mitigation of fetal pain.”
When considering the right of women to have an abortion, the majority expressed worry that women might be inhibited from choosing which relationships they enter into and would, thus, be unable to compete with men in the workplace.
The Court went on to say that these are merely policy arguments and “supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States.” The majority might be right about this. If all that is at stake for women is the right to choose a relationship, they cannot possibly protect that right over gruesome medical procedures that end the lives of babies. The Court never considered that relationship choice and job competition are far from the only abortion-related risks women face.
By considering a sparse defense of the right to seek an abortion the Court willingly ignored the impact of pregnancy and childbirth on a woman. Pregnant women are commonly prone to risks like anemia, anxiety, depression, diabetes, heart conditions, high blood pressure, hyperemesis gravidarum (extreme vomiting leading to weight loss and dehydration), bacterial infection, and death. Nearly 20 percent of women experience violence during pregnancy, domestic violence being a leading cause of death among pregnant women.
Women additionally face lesser-known health conditions - their brains shrink during pregnancy and can take up to two years to return to normal. Women may excrete on the labor delivery table. Episiotomies, or cutting the vaginal hole opening to make the baby’s head come through, are common during childbirth. A third or fourth degree perineal tear or the tearing of the area between the vagina and anus could result in a natural wound. An epidural, meant to relieve pain, is inserted through a six-inch needle into a woman’s back and stays there for the entirety of labor. Some women wear diapers for weeks or years after giving birth because they lose the ability to control their bladder. Women often lose their hair after birth. Finally, having a child could lower a woman’s lifetime wages as compared to those who do not have children.
There are countless other ways a woman’s health, life, and dignity can be harmed when she becomes pregnant and gives birth. Both Roe and Dobbs assumed that it is acceptable that at some point in pregnancy, a woman should lose her choice about whether to endure all of this. Pregnancy necessarily accompanies pain, and occasionally kills. In the United States, abortion is less fatal for women than childbirth. That is not a policy argument, that is a fact.
Even if, for the sake of argument, it could be proven that a foetus’s life begins at conception, that does not justify the state recognizing a legitimate interest in the life of the foetus over its interest in protecting the life of the mother. Abortion bans are the only laws in the United States that mandate a person to risk their life or undergo physical pain for another.
Viability has long seemed like a middle ground between pro-choice and pro-life advocates. The liberal dissent in Dobbs championed Roe for upholding this position as it “struck a balance” between the State’s competing interests in the life of the foetus and a woman’s right to choose and the varied beliefs of Americans. While normatively, it feels wrong to say a woman should have the right to abort at nine months, when deciding constitutional protections we must look beyond normative ideas.
Every person has a slightly different understanding of when life begins. This understanding can be based on religion, culture, law, or personal experience. Despite a lack of consensus, viability restrictions are thought of as an agnostic way to both protect women’s rights and prevent against the unsettling idea of killing a baby. Because there is no way to know when life begins, decisions on viability and abortion bans come down to who can make the best argument about when a woman should lose her rights.
But a woman should, perhaps, never lose her rights, given pregnancy’s violent implications. Can the State constitutionally mandate this violence even if it is for the sake of another life? This question is more salient because in practice, neither viability nor other abortion restrictions actually protect the life of foetuses.
Less than one percent of abortions occur after twenty-one weeks. Most abortions after twenty one weeks happen due to health issues that endanger either the life of the mother or of the foetus. Any legal restriction relating to when a foetus is “viable” only impedes a woman from seeking potentially life-saving medical care.
The American College of Obstetricians and Gynecologists argues against viability because, “bans on abortion care often overlook unique patient needs, medical evidence, individual facts in a given case, and the inherent uncertainty of outcomes.” And even if the worst-case scenario occurs, of a woman opting to ‘kill’ a perfectly healthy baby nine months into pregnancy, any sort of legal restriction does not resolve the issue.
A ban on abortion does not stop abortion. Before Roe, the number of illegal abortions in the United States in the 1960s ranged from 200,000 to 1.2 million per year. The majority in Dobbs went to great lengths to discuss the history of abortions being criminalized in the United States, but it conveniently left out any mention of these historical numbers.
In 2021, post-Roe and pre-Dobbs, there were roughly 600,000 abortions. Abortion rates did not change, but what drastically changed is the safety of abortion for women. A doctor, describing his residency training pre-Roe, stated that he went to the funeral of two women that had illegal abortions and “one rolled into our emergency room with a couple of feet of intestines coming out of her vagina, and the other died under our care whose sister tried to abort her with knitting needles.”
If a woman truly wants to abort her foetus at nine months, an abortion restriction will not stop her. She might end up killing herself in the process. Legal restrictions on abortions do not mean less abortions but more adverse outcomes for women seeking abortions and less comprehensive medical care.
Texas and Australia: Two jurisdictions, two contrasting approaches
Texas has some of the world’s strictest abortion laws while Australia, has some of the most liberal ones. Texas currently prohibits abortion in all circumstances unless the life or health of the mother is at risk. This exception could alleviate every concern raised so far.
Every time a woman gets pregnant, her health and life are at risk. This should mean that women in Texas can terminate their pregnancy at any point under the law. Unfortunately, because a woman’s right to life is not truly considered in this type of legislation, the State has certain requirements that must be met. A physician must determine that there is a life-threatening condition, and the patient is at risk of death or substantial impairment of a major bodily function.
Instead of focusing on making the best medical decision for her patient, a doctor must consider whether she could justify her decision to a jury or judge. She must decide if the decision to abort is worth facing prison, fines of at least $100,000, or a loss of her medical license. When doctors are facing prison time for making certain medical choices, they are clearly incentivized not to make those choices. These potential punishments exemplify that the state is more concerned with the potentiality of human life than they are with the life, safety, and dignity of a woman. Roe’s viability exception gave legitimacy to this position, and any viability restriction based on an idea of a potential human life does the same.
Contrastingly, Australia has fully decriminalised abortion. Women in Australia have access to an abortion until the third trimester. Each territory has slightly different laws governing abortion in the third trimester, but the general rule is that an involved medical practitioner must consult another medical practitioner who believes that the abortion should be performed after considering all the circumstances. Rather than establishing an interest in the foetus, the state gives priority to women’s rights. If a woman wants to terminate in the ninth month, doctors use their medical expertise and evaluate the totality of circumstances.
The Australian system prioritises women’s rights over a foetus’s rights. This prioritisation does not increase abortions. Roughly 90,000 abortions occurred yearly in Australia between 2015 and 2019. Although Australia only has a population of 27.1 million as compared to the United States’ 346 million, the rates of abortion in the two countries were roughly the same pre-Dobbs.
Contrary to expectation, Dobbs resulted in an increase in abortions. American women and Australian women are receiving abortions at roughly the same rate, but they face vastly different hurdles. Post-Dobbs the only tangible difference is that in America we routinely hear horror stories of women who could not receive medical care because of abortion restrictions and Australians do not.
Australia’s law is also more in line with the Universal Declaration of Human rights, which recognizes that “all human beings are born free and equal in dignity and rights… everyone has the right to life, liberty and the security of person… and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” These standards do not permit the State to prioritise an unborn foetus’s potentiality for life over that of a living women.
An equal protection legal strategy
Nearly every abortion ban in the U.S. theoretically recognizes in extreme circumstances, a mother’s right to life outweighs a foetus’s right to life. But in Dobbs, SCOTUS not only refused to fully recognise this right, but also departed from established precedent. The right to privacy argument is of little value in a Court that is convinced of the State’s legitimate interest in protecting foetuses. But, an argument based on the equal protection of women could potentially prevail even amongst a conservative judiciary.
