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Roe vs. Wade: The Politics in Law


The polarization of American politics has never more evident than during the unforgettable Trump era. With the confirmation of Amy Coney Barrett (ACB) to the Supreme Court, it would be appropriate now to delve into one of the earlier examples of divergence of political attitudes in America: Roe v. Wade. Abortion has always been a controversial topic and Roe v. Wade has always been a controversial judgment. However, while there is a general awareness that the case involves abortion, not many are aware of the facts, history, and politics revolving it. What exactly did Roe v. Wade decide? And what does ACB have to do with it?


Surprisingly, abortion was not entirely controversial in America prior to the 19th century. Abortion was permitted up until the “quickening”, both a physical and legal concept of fetal movement (15-20 weeks). In fact many adverts for abortifacients could be seen on the paper. However, owing to many factors many States started criminalizing abortions. For example, New York had criminalized post-quickening abortions and pre-quickening abortions were considered misdemeanor in 1829. Physician were the most vocal in the anti-abortion case and the American Medical Association aided in accelerating its criminalization.


Roe v Wade did not provide a right to abortion but set guidelines for the availability of the procedure. Abortions were allowed in certain circumstances in many states and this case set a threshold for state interest. Increasing restrictions were allowed corresponding to fetal “viability”, or the likelihood of its survival outside the uterus. It was a landmark decision by the U.S Supreme Court in ruling that the Constitution of the US protects the liberty of pregnant women to choose to have an abortion without the intervention of the government. In a 7-2 decision, the judges stated that the right to choose an abortion was protected by the 14th Amendment to the Constitution (privacy rights). The decision was then, and still is, highly controversial, with many Republicans and Conservatives voicing their disagreement and stating that the case is an example of ‘judicial activism’.


With this in mind, we move to ACB. She was nominated by President Trump who has made clear that he plans to appoint justices who would overrule Roe v. Wade. Her accession to the Supreme Court, moves the bench to the right owing to her conservative voting record. As a result, many are concerned about her stance on abortion. When asked, she has remained largely silent on the matter only responding to the fact that it is settled precedent. However, she wrote in a Texas Law Review article that “the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.” Therefore it remains to be seen what exactly will come from the decision of the current conservative-heavy bench.


Written by: Aathira Prakash Menon, 4th Year LLB Student at the University of Edinburgh, Intern at S. Bhambri and Associates.


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