25 November 2021, The Tablet

Abortion and US law

Abortion and US law

The US Supreme Court in Washington, DC
Photo: CNS, Tyler Orsburn


The right of women to a legal abortion has been protected by the US Constitution for nearly 50 years. Critics have long argued that its legalisation should be a matter for voters; now some are arguing that abortion violates the Constitution

The term “landmark case” is overused, but indubitably applies to Dobbs vs Jackson Women’s Health Organization, which will be argued before the Supreme Court of the United States on 1 December. With good reason, some fear and others hope that a court now dominated by Republican appointees will use this case from Mississippi to overrule Roe vs Wade, the 1973 ruling legalising abortion, and Planned Parenthood vs Casey, a 1992 ruling that reaffirmed Roe’s “essential holding”.

Part of that holding is a recognition that a woman has a right to choose to have an abortion before a foetus is viable – that is, capable of surviving outside the womb – a point usually fixed at 24 weeks into a pregnancy. The nine justices will scrutinise a Mississippi law that bans most abortions after 15 weeks. Predictably, given the high stakes in the Mississippi case, the justices have been inundated with briefs by amici curiae – “friends of the court” – advising how they might rule. The briefs explore myriad issues, including whether Roe and Casey – even if the court believes they were wrongly decided at the time – are entitled to deference as precedents under the doctrine of stare decisis.

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