Understanding Roe vs Wade

What does Roe vs Wade say?

It says that the Supreme Court does not have the power to enforce the right to abortion. It is not a part of the Constitution of the United States (like the right to bear arms, etc), and the job of amending the Constitution is that of elected lawmakers and not the judiciary.

EDIT: It seems that the Supreme Court announcement says that whether abortion should be performed should be a decision taken jointly the doctor and the patient, and lawmakers cannot intrude on that. I am quoting it below:

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

I am not sure whether the Supreme Court can stop state legislatures from making abortion laws. Hence, these might just be empty words. Moreover, we are again in the scenario where a conservative doctor may trample on a woman’s individual right to have an abortion and force her to have the baby anyway.

It also seems that the overturning of Roe vs Wade was preceded by Dobbs vs Jackson, in which the Supreme Court found that the Constitution does not confer a right to abortion. This wiki article is a good summary of Dobbs vs Jackson. A charitable understanding of the situation might be that the Supreme Court was forced to conclude in Dobbs vs Jackson that there was no constitutional precedence for a right to abortion. This ruling was in direct contravention of Roe vs Wade. Hence, for the purposes of self-consistency, the Supreme Court also overturned Roe vs Wade.

An uncharitable reading might be that the Supreme Court used its ruling in Dobbs vs Jackson as a weapon to overturn Roe vs Wade.

But isn’t the right to abortion a basic human right? Doesn’t the Supreme Court have a duty to enforce a basic human right?

The Supreme Court is not discussing the moral nature of the issue, but only the legal nature. If the right to abortion is indeed a moral right, the people of the country too will see it that way, and then elect lawmakers who will make the right to abortion part of the constitution.

Okay, so why don’t state legislatures make abortion legal?

A large part of the population, and consequently a large fraction of lawmakers, see abortion as immoral unless the life of the mother is in danger. Hence, many states (like Texas) will not make abortion legal.

What exactly is the abortion law in conservative states like Texas?

This is a good summary of the abortion law in Texas. Fetuses cannot be aborted after a faint heartbeat is detected, which is generally 6-7 weeks into the pregnancy. There is no exception for rapes, incest, etc.

Doesn’t the fetus become a person when a heartbeat can be detected? Why should the fetus be killed? Even if it is the result of rape or incest, it is not the fetus’s fault!

Why draw an arbitrary line at detecting a faint heartbeat? Why not say that each sperm is a potential person, and hence make masturbation illegal? Also, bringing up a child that is a result of rape or incest can be extremely traumatizing for the mother. We have to prioritize the already living over the will-be-living.

The point about the sperm was totally arbitrary. When you make a pizza, for instance, the dough is not equivalent to the pizza, although it is perhaps the fundamental ingredient. If you throw away the dough, you’re not throwing away the pizza. However, when the pizza has been in the oven for a while and is beginning to look like one, throwing it away at that point would be equivalent to throwing a pizza away.

Well, continuing that analogy, the dough doesn’t begin to look like a pizza after being put into the oven for 1 minute. Similarly, a fetus doesn’t become a person at 6 weeks. It begins to do so at around 23 weeks. This is reflected in California’s abortion law, which allows abortion up to roughly 23 weeks.

But isn’t a heartbeat a universally accepted sign of life? Of a person?

Although there is historical precedence for treating a heartbeat as a fundamental indicator of life, another way to look at the issue is to note that a “person” is a form of life that can survive outside of the uterus. A 6 week old fetus cannot survive outside of the uterus, while a 23 week fetus can.

But a 6 week fetus will inevitably become a 23 week fetus, right? Isn’t killing a 6 week fetus morally equivalent to killing a 23 week one?

Would you say masturbating is equivalent to killing a baby? Would you say that throwing away an unflattened ball of dough equivalent to throwing away a pizza?

Let’s flip the script. Killing a man of 30 is more morally egregious than killing an old man, right? The young man had so much more left to experience. Similarly, killing a child is much more morally egregious than killing a man of 30, because that child had hardly seen anything in life. Shouldn’t it consequently be more morally egregious to kill a 6 week old baby than killing a 23 week old baby, 30 year old man or old man?

But then shouldn’t masturbating be the worst possible sin? Shouldn’t not procreating be a sin? Shouldn’t we be procreating as much as we can? Every life that we don’t bring on Earth is a life wasted.

Well, okay. If we continue to procreate at every opportunity we get, we won’t be able to lead a happy life, or even have the resources to nourish our children. Hence, some balance has to be stuck between procreating and doing other things.

But let’s get back to the nitty-gritties. As of today, if a woman needs to get an abortion, she can get it before 6 weeks even in conservative states like Texas. If she needs to get one even after that, she can travel to a liberal state like California to get one. Is overturning Roe vs Wade really going to substantially hamper a woman’s efforts to get an abortion?

Well, it seems that women normally take five to six weeks to realize that they’re pregnant. Hence, by the time that a woman even realizes that she’s pregnant, abortion will become illegal for her in a state like Texas. Now she will have to travel to another state to get an abortion.

Seeing as unwanted pregnancies disproportionately affect women living in poverty and working minimum wage jobs or being homeless, these women will now be forced to take a break from work, and somehow find a way to pay for a weeks’ long trip to another state in order to have an abortion. Is it really that difficult to imagine that a lot of such women will choose to instead opt for unsafe and illegal procedures to get rid of their fetuses, thereby injuring their health?

Okay, I see that there is a moral argument to making abortion easily available to women. But let’s talk statistics. How many women die to the unavailability of abortion?

Consider the following passage from this link:

So how many lives will easy access to abortion save? Clearly there’s an upper bound of 700. Hence, less than 700 lives will be saved from all over the US if abortion is made freely available.

EDIT: I suppose there would be more deaths than 700, now that women who had access to abortion no longer have it in at least 13 states. I don’t have the numbers, and haven’t been able to find reliable statistics anywhere. We can do simple upper bound calculations though.

The Guttmacher Institute says that there were 930,160 abortions in 2020.

Unsafe abortions cause 3 more deaths per 1000 abortions than safe abortions. Even if we assume that all abortions in the US become illegal, and hence unsafe (this is a crazy upper bound), the number of extra deaths after overturning Roe vs Wade would be \frac{3}{1000}\times 930160=2790. We can further refine this number by using the fact that only 13/50 states have outlawed abortion. Assuming a uniform distribution of abortions (which may or may not be a good assumption), we get \frac{13}{50}*2790=725. This agrees with the earlier figure of 700, and I am now more confident in this statistic.

That’s not a lot of lives. The US government kills many, many more than that each year in its imperialist adventures. Aren’t there other issues that we should be focusing on, that can perhaps save more lives?

Well, the point is that overturning Roe vs Wade is the first step towards a truly intolerant state of affairs, in which the Supreme Court also reverses its rulings on same-sex marriage, contraception, etc. The Supreme Court has historically been a bulwark of individual freedom against majoritarian conservatism in states like Texas, etc. If the Supreme Court keeps claiming that it does not have the power to guarantee individual freedoms that were not enshrined in the constitution, and that this is the prerogative of lawmakers, then this could be a truly backward step for society in the United States.

But shouldn’t people abide by the decisions of their lawmakers? If you don’t agree with them, don’t re-elect them!

Well, majoritarian democracy does not always lead to the protection of individual minority rights. The majority in any country will try to undermine the minority. This is why individual freedom has to be guaranteed by the Supreme Court, and not legislatures. Texas, for instance, may never elect a government that supports same sex marriage; at least in the near future. However, homosexuals in Texas should have the right to marry, as long as they don’t infringe on the freedoms of others.

Can’t Biden bring back Roe vs Wade, then? Why wait for state legislatures?

Well, it seems that he can, but he has used up all of his bargaining chips getting his economic bill approved by the Republicans.

EDIT: It seems that what the article actually says is that Biden needs at least 60/100 votes in the Senate to get the bill passed. Although ordinary bills need a simple majority of 51/100, bills that may lead to a filibuster need 60/100. The Senate comprises of:

Notably, the Senate prevented a bill that would codify abortion in a 51-49 majority earlier this year. Hence, it is unlikely that Biden would be able to get this bill passed in the near future.

Let us look at historical precedence. Women’s right to vote was passed in the House, and not imposed by the Supreme Court. African-Americans’ right to vote was also passed in the House, and not enforced by the Supreme Court. Shouldn’t we hope for the same in the case of abortion, instead of asking the Supreme Court to perform an unconstitutional duty? On the other hand, hundreds and thousands of women will suffer and die before we see the kind of societal change needed to codify the right to abortion. Don’t we have some sort of moral obligation to prevent this from happening?

In some broad sense of the word, the “right to abortion” is not the “will of the people of the United States”. Both the centre and the state legislatures do not have enough votes to to get this bill passed. However, individual rights have rarely been the “will of the people”.


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Graduate student

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